Defense Sentencing Memorandum — United States v. Ejembi Onah (N.D.N.Y., Dkt. 109, August 23, 2024)

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A Defense Sentencing Memorandum in United States of America v. Ejembi Onah, Case No. 3:22-cr-0082 (DNH), Document 109, filed 08/23/24, in the U.S. District Court for the Northern District of New York. The memorandum states that Dr. Onah was found guilty after a bench trial on October 10, 2023 of two counts of wire fraud (18 U.S.C. § 1343) and three counts of money laundering (18 U.S.C. § 1957), and that the presentence report sets a total offense level of 20 and a guideline range of 33-41 months. It requests a sentence of time served followed by supervised release with restitution, objects to the obstruction enhancement, and alternatively asks for self-surrender. The signature block names Courtenay K. McKeon, Assistant Federal Public Defender.

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        Case 3:22-cr-00082-DNH Document 109 Filed 08/23/24 Page 1 of 10




UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

      -v-                                     CASE NO. 3:22-cr-0082 (DNH)
                                              DEFENSE SENTENCING MEMORANDUM
EJEMBI ONAH,
                        Defendant.
______________________________________________________________________________


I. PRELIMINARY STATEMENT

       On October 10, 2023, after a bench trial, Ejembi Onah (“Dr. Onah”) was found guilty of

two counts of wire fraud (18 U.S.C. § 1343) and three counts of money laundering (18 U.S.C. §

1957). (Dkt. No. 96.) Sentencing is scheduled for September 12, 2024. The United States

Probation Department prepared a Presentence Investigation Report (hereinafter “PSR”) on May

8, 2024, in anticipation of sentencing. (Dkt. No. 103.) The PSR sets forth a total offense level of

20, a Criminal History Category of I, and a Guideline sentencing range of 33-41 months. Id. ¶¶

64, 69, 102. The defense respectfully submits this memorandum in support of a sentence of time

served to be followed by a period of supervised release during which Dr. Onah would be

required to pay restitution.

II. FACTUAL AND PROCEDURAL HISTORY

       Dr. Onah was born in Nigeria in 1963. (Dkt. No. 103 ¶ 75.) His mother and his sister still

live in Nigeria. Id. His father, who was a farmer, died in a car accident in 1981. Id. During Dr.

Onah’s childhood and teen years, he worked on his parents’ farm after school and on Saturdays.

Id. ¶ 76. He graduated from high school in 1980. Id. ¶ 87. He went to college in Nigeria and

earned a bachelor’s degree in chemistry in 1985 and a master’s degree in organic chemistry in
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1988. Id. After college, he served in the army for a year, which is common for college graduates

in Nigeria. Id. ¶ 90. Dr. Onah’s army service consisted of teaching English classes. Id.

        In 1993, Dr. Onah married Joy O. Onah. (Dkt. No. 103 ¶ 79.) They are still married. Id.

They have four children, ranging in age from 19 to 27. Id. All four children live in the Ithaca

area. Id.

        Dr. Onah left Nigeria in 1996 to earn his Ph.D. in Germany. (Dkt. No. 103 ¶ 77.) In 2001,

he moved to the United States. Id. He worked as a scholar at Virginia Tech for year. Id.¶ 96. He

then moved to New York State and has lived in Tompkins County since 2007. Id. ¶ 77. He

worked at Cornell University from 2001 to 2004. Id. ¶ 96. He became a naturalized United

States citizen on August 23, 2012. Id.

        After leaving Cornell, Dr. Onah began operating several corporations and non-profit

agencies. (Dkt. No. 103 ¶¶ 92-95.) In addition, he pursued his lifelong interest in religion. In

2021, Dr. Onah received a Ph.D. in biblical studies. Id. ¶ 87. He published a book in January

2024 titled God’s Grace by Faith in Jesus Christ. Id. at 21 n.3.

        As the Court is aware from the bench trial, the charges in this case stem from events in

2020 and 2021. (Dkt. No. 103 ¶¶16-49.) The government contended, and the Court found, that

Dr. Onah misrepresented information on multiple applications for Paycheck Protection Program

(“PPP”) loans during the COVID-19 pandemic. Id. Dr. Onah has always contended that he was

the victim of computer hackers. Id. ¶ 17.

        Dr. Onah was charged by complaint on April 2, 2021. (Dkt. No. 1.) He made his initial

appearance by video on April 8, 2021. (Minute Entry Apr. 8, 2021.) He was released on

conditions pending trial. (Dkt. No. 11.) He has been compliant with the conditions of his release

during the three years that his case has been pending. (Dkt. No. 103 ¶ 7.)



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        Dr. Onah had a stroke in February 2022. (Dkt. No. 103 ¶ 82.) He was hospitalized in

Syracuse for several days, during which time physicians removed a blockage from his brain and

implanted a heart monitor. Id. Upon his release from the hospital, he was placed in rehabilitation

at Cayuga Medical Center for approximately two weeks. Id. He continued to receive weekly

occupational and physical therapy for a few months after his release from the rehabilitation

hospital. Id. He continues to experience some memory issues as a result of the stroke. Id. He is

currently being treated for hypertension, hyperlipidemia, thalassemia (an inherited blood disorder

that affects the structure of the red blood cells), a left anterior fascicular block of the left heart

ventricle, and damage to the left hemisphere of his brain from the stroke. Id. ¶ 83.

        Dr. Onah was indicted on March 18, 2022. (Dkt. No. 35.) The case proceeded to trial.

The Court conducted the bench trial on October 10, 2023. (Minute Entry Oct. 10, 2023.) Dr.

Onah testified on his own behalf. (Dkt. No. 108 at 81-121.) The Court found Dr. Onah guilty.

(Dkt. No. 96.) Sentencing is scheduled for September 12, 2024. (Dkt. No. 107.)

III. THE FACTORS LISTED IN 18 U.S.C. § 3553(a) WEIGH IN FAVOR OF A
GUIDELINE SENTENCE OF 120 MONTHS.

        In determining a sentence, a court must consider the statutory concerns listed in 18

U.S.C. § 3553(a). Those factors include: (1) the nature and circumstances of the offense and the

history and characteristics of the defendant; and (2) the need for the sentence imposed to (A)

reflect the seriousness of the offense, promote respect for the law, and provide just punishment

for the offense; (B) afford adequate deterrence to criminal conduct; and (C) protect the public

from further crimes of the defendant. 18 U.S.C. §3553(a). Here, these factors weigh in favor of

imposing a sentence of time served to be followed by a period of supervised release.




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          A. Dr. Onah’s History and Characteristics Weigh in Favor of a Below-Guideline
             Sentence of Time Served.

          Dr. Onah’s history and characteristics weigh in favor of a below-Guideline sentence for

three reasons. First, Dr. Onah has no criminal history other than the current offense. (Dkt. No.

103 ¶ 69.) It is “general[ly] appropriate[] [to] impos[e] a sentence other than imprisonment in

cases in which the defendant is a first offender.” 28 U.S.C. § 994(j). Courts often impose below-

Guideline offenses for first-time non-violent offenders, particularly where the defendant commits

the offense relatively late in life. See, e.g., United States v. Paul, 561 F.3d 970 (9th Cir.

2009)(holding within-Guideline sentence of fifteen months unreasonably high in part because

defendant was first-time offender with no criminal record whatsoever); United States v. Tomko,

562 F.3d 558 (3d Cir. 2009) (en banc) (below-Guideline sentence of probation reasonable where

defendant convicted of tax evasion of $225,000, had “minimal criminal record”). The PSR notes

that Dr. Onah’s lack of criminal history could warrant a below-Guideline sentence. (Dkt. No. 103

¶ 123.)

          Second, Dr. Onah has been steadily employed throughout his life. (Dkt. No. 103 ¶¶ 92-

96.) Courts may appropriately consider a defendant’s employment history as a reason for a

below-Guideline sentence. See United States v. Munoz-Nava, 524 F.3d 1137 (10th Cir. 2008)

(affirming sentence of one year and a day for defendant convicted of possession with intent to

distribute 100 grams of heroin with Guideline range of forty-six to fifty-seven months, citing in

part defendant’s “long and consistent work history.”) The PSR notes that Dr. Onah’s history of

gainful employment over many years could warrant a below-Guideline sentence. (Dkt. No. 103 ¶

123.)

          Third, Dr. Onah is in poor physical health. He suffered a stroke while this case was

pending. He suffers from hypertension, hyperlipidemia, thalassemia (an inherited blood disorder

that affects the structure of the red blood cells), a left anterior fascicular block of the left heart
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ventricle, and damage to the left hemisphere of his brain from the stroke. (Dkt. No. 103 ¶ 83.) A

defendant’s poor medical condition is an appropriate factor for the Court to rely upon when

imposing a below-Guideline sentence. See United States v. Alemenas, 553 F.3d 27 (1st Cir.

2009) (downward variance based on defendant’s chronic neck pain and mental health); United

States v. McFarlin (8th Cir. 2008) (downward departure based on defendant’s mental health and

heart disease); United States v. Weintraub, 371 F. Supp. 2d 164, 167 (D. Conn. 2005)

(sentencing court granted substantial downward departure based on defendant’s poor health);

United States v. Jimenez, 212 F. Supp. 2d 214 (S.D.N.Y. 2002) (downward departure where

defendant suffered brain aneurism); United States v. Kloda, 133 F. Supp. 2d 345 (S.D.N.Y.

2001) (downward departure where defendant had health problems); United States v. Hammond,

37 F. Supp. 2d 204 (E.D.N.Y. 1999) (downward departure where defendant suffered from HIV);

United States v. Blarek, 7 F. Supp. 2d 192 (E.D.N.Y. 1998) (downward departure based on

defendant’s health) United States v. Gigante, 989 F. Supp. 436 (E.D.N.Y. 1998) (downward

departure where defendant suffered from heart condition). The PSR notes that Dr. Onah’s

physical health could warrant a below-Guideline sentence. (Dkt. No. 103 ¶ 123.) Therefore, this

factor weighs in favor of the Court imposing a below-Guideline sentence of time served on Dr.

Onah.

        B. A Sentence of Time Served Would Reflect the Seriousness of the Offense,
           Promote Respect for the Law, Provide Just Punishment for the Offense, and
           Afford Adequate Deterrence to Criminal Conduct.

        A sentence of time served to be followed by a period of supervised release, during which

Dr. Onah would be required to pay restitution, would reflect the seriousness of the offense,

promote respect for the law, and provide just punishment for the offense. As the PSR notes, the

victims in this case were financial institutions and the loss they suffered was financial. (Dkt. No.

103 ¶¶ 50-51.) If imprisoned, Dr. Onah would have no capacity to pay restitution. Conversely, if

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he is not imprisoned, he would be able to begin paying his debt. This punishment would also

afford adequate deterrence to criminal conduct. Studies of the deterrent effect of prison sentences

have found that it is the prosecution of crime, rather than the sentence imposed, that has the

strongest deterrent effect. In one of the best studies of specific deterrence, which involved federal

white-collar offenders in the pre-guideline era, no difference in deterrence was found between

probation and imprisonment. Another study by the Institute of Criminology at Cambridge

University examined the effects of changes to both the certainty and the severity of punishment.

While significant correlations were found between the certainty of punishment and crime rates,

the “correlations between sentence severity and crime rates . . . were not sufficient to achieve

statistical significance.” See David Weisburd et. al., Specific Deterrence in a Sample of

Offenders Convicted of White-Collar Crimes, 33 Criminology 587 (1995). Therefore, this factor

weighs in favor of the Court imposing a below-Guideline sentence of time served on Dr. Onah.

       C. A Sentence of Time Served Would Protect the Public from Further Crimes of
          the Defendant.

       A sentence of time served would protect the public from further crimes by the defendant.

As noted above, Dr. Onah is sixty-one years old and has no criminal history other than this case.

He has demonstrated his ability to obey court orders by remaining compliant with the conditions

of his release during the three years that his case has been pending. (Dkt. No. 103 ¶ 7.) This

compliance shows that incarceration is not necessary to protect the public because Dr. Onah will

follow the Court’s conditions of supervised release. Courts have considered a defendant’s good

behavior while under pretrial supervision in determining the appropriate sentence. See United

States v. Munoz-Nava, 524 F3d 1137 (10th Cir. 2008)(in heroin distribution case where

guidelines were 47-56 months, district court’s sentence of one year and one day in prison to be

followed by one year home detention was reasonable in part because of defendant’s behavior

while on pretrial release for 1.5 years); United States v. Baker, 502 F3d 465 (6th Cir
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2007)(below guideline sentence of probation with one year house arrest was proper in part

because defendant behaved “exceedingly well” while under supervision). Therefore, this factor

weighs in favor of the Court imposing a below-Guideline sentence of time served on Dr. Onah.


IV. THE GOVERNMENT HAS NOT MET ITS BURDEN OF PROVING THAT THE
TWO-LEVEL ENHANCEMENT FOR OBSTRUCTION OF JUSTICE APPLIES.

       The PSR adds two points to Dr. Onah’s total offense level pursuant to Guideline § 3C1.1

for obstruction of justice. (Dkt. No. 103 ¶ 60.) The PSR states that the enhancement is applicable

because Dr. Onah testified that “unknown third parties were responsible for submitting the

fraudulent PPP loan applications.” Id. ¶¶ 52, 60. The defense objects to the imposition of this

enhancement.

       An enhancement for obstruction of justice is not appropriately applied simply because a

defendant testifies on his own behalf and denies his guilt. The enhancement is appropriately

applied only if the “sentencing court ... find[s] that the defendant 1) willfully 2) and materially 3)

committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material

matter.” United States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997). The sentencing court must

“identify the statements on which the perjury finding was grounded,” find that they are material,

and “make explicit findings that defendant's testimony was intentionally false.” United States v.

Rosario, 988 F.3d 630, 634 (2d Cir. 2021) (per curiam) (internal quotation and alteration marks

omitted). The government bears the burden of proving that the testimony was perjurious, “a

burden that includes a showing of specific intent.” United States v. Weissman, 22 F. Supp. 2d

187, 190 (S.D.N.Y. 1998), aff'd, 195 F.3d 96 (2d Cir. 1999). Here, the government has not made

any argument regarding specific intent. (Dkt. No. 106.) Therefore, the government has not met

its burden of showing that the enhancement applies. As matters stand, imposing the obstruction



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enhancement would serve solely to punish Dr. Onah for exercising his right to testify on his own

behalf. Accordingly, the defense requests that the Court decline to impose the enhancement.

V.   THE COURT SHOULD IMPOSE A BELOW-GUIDELINE SENTENCE TO
EXPRESS DISAGREEMENT WITH THE FRAUD GUIDELINE, WHICH IS NOT
BASED ON EMPIRICAL DATA.

       The Court should impose a below-Guideline sentence of time served to express

disagreement with the fraud Guideline, which is not based on empirical data. Under normal

circumstances, the Sentencing Commission bases its Guidelines on empirical data. Kimbrough

v. United States, 552 U.S. 85, 109 (2007); see also Gall v. United States, 552 U.S. 38, 46 (2007)

(noting that even though the Guidelines are advisory rather than mandatory, they are [mostly] …

the product of careful study based on extensive empirical evidence derived from the review of

thousands of individual sentencing decisions.”) But when a particular Guideline is not based on

an empirical approach, a court is not presented with the ordinary case in which the Commission’s

recommendation of a sentencing range will reflect a rough approximation of sentences that might

achieve § 3553(a)’s objectives. See e.g., Kimbrough, 552 U.S. at 109; see also Gall, 552 U.S. at

46 n.2 (noting that not all Guidelines are tied to empirical evidence). In these cases, it is not an

abuse of discretion for a district court to conclude when sentencing a particular defendant that

application of the guideline yields a sentence greater than necessary to achieve § 3553(a)’s

purposes even in a mine-run case. Kimbrough, 552 U.S. at 109.

         Many courts have rejected the fraud Guideline on policy grounds because “the amount

of loss … [has] become the principal determinant of the adjusted offense level and hence the

corresponding sentencing range.” United States v. Algahaim, 842 F.3d 796, 800 (2d Cir. 2016).

“This approach, unknown to other sentencing systems, was one the Commission was entitled to

take, but its unusualness is a circumstance that a sentencing court is entitled to consider.” Id.



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See also United States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y. 2006); United States v.

Emmenegger, 329 F. Supp. 2d 416, 427 (S.D.N.Y. 2004). The Guidelines do not “explain[] why

it is appropriate to accord such huge weight” to loss amount. Adelson, 441 F. Supp. 2d at 509.

Rather, “the numbers assigned by the Sentencing Commission to various sentencing factors

appear to be more the product of speculation, whim, or abstract number-crunching than of any

rigorous methodology—thus maximizing the risk of injustice.” United States v. Gupta, 904 F.

Supp. 2d 349, 351 (S.D.N.Y. 2012). One judge has observed that the lack of empirical data

underlying the Guideline has led to “[t]he widespread perception that the loss guideline is

broken.” United States v. Corsey, 723 F.3d 366, 378 (2d Cir. 2013) (Underhill, J., concurring).

       In this case, the loss amount adds twelve levels to Dr. Onah’s offense level. (Dkt. No.

103 ¶ 56.) It increases his base offense level from seven to nineteen. Id. If that twelve-level

increase did not apply, Dr. Onah’s sentencing Guideline range would be 0-6 months rather than

33-41 months. That dramatic increase is not based on any empirical data. Therefore, the defense

requests that the Court impose a below-Guideline sentence of time served to express

disagreement with the fraud Guideline.

VI.    REQUEST FOR SELF-SURRENDER

       As discussed above, the defense contends that a time-served sentence is appropriate in

this case. However, if the Court imposes further incarceration, the defense respectfully requests

that Dr. Onah be allowed to self-surrender.




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VII.   CONCLUSION

       For the reasons discussed above, the defense respectfully requests that the Court impose a

sentence of time served to be followed by a period of supervised release during which Dr. Onah

would be required to pay restitution.




DATED: August 23, 2024                              LISA A. PEEBLES
                                                    FEDERAL PUBLIC DEFENDER
                                            By:     /s/ Courtenay K. McKeon, Esq.
                                                    Assistant Federal Public Defender
                                                    Bar Roll No. 515841
                                                    Clinton Exchange, 3rd Floor
                                                    4 Clinton Street
                                                    Syracuse, New York 13202
                                                    (315) 701-0080



To:    Michael D. Gadarian, AUSA (by ECF)
       Karlie Hall, SUSPO (by email)
       Ejembi Onah (by email)




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