Second Government Sentencing Memorandum — United States v. Ejembi Onah (N.D.N.Y., Dkt. 111, August 26, 2024)

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A Second Government Sentencing Memorandum in United States v. Ejembi Onah, Criminal No. 3:22-CR-082 (DNH), in the U.S. District Court for the Northern District of New York, filed August 26, 2024 as Document 111. It states that sentencing is scheduled for September 12, 2024, following a bench trial conviction on two counts of wire fraud under 18 U.S.C. § 1343 and three counts under 18 U.S.C. § 1957. The government responds to two issues in Onah's August 23, 2024 memorandum, arguing that the PSR correctly applied the obstruction of justice adjustment under U.S.S.G. § 3C1.1, and that it should not vary downward. It states that the guideline recommended sentence is 33-41 months.

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         Case 3:22-cr-00082-DNH Document 111 Filed 08/26/24 Page 1 of 5




                         IN THE UNITED STATES DISTRICT COURT
                       FOR THE NORTHERN DISTRICT OF NEW YORK

    UNITED STATES OF AMERICA                     )   Criminal No.     3:22-CR-082 (DNH)
                                                 )
                v.                               )   SECOND GOVERNMENT
                                                 )   SENTENCING MEMORANDUM
    EJEMBI ONAH,                                 )
                                                 )
                                                 )
                Defendant.                       )

I.      Introduction

        The defendant is scheduled for sentencing on September 12, 2024, following his conviction

after a bench trial to two counts of wire fraud, in violation of 18 U.S.C. § 1343, and three counts

of making transactions in criminally derived property, in violation of 18 U.S.C. § 1957. The

government respectfully submits this supplemental sentencing memorandum to address two issues

raised by Onah in his sentencing memorandum filed on August 23, 2024. See Dkt. 109. 1

II.     The PSR Properly Applied the Obstruction of Justice Enhancement

        Contrary to the defendant’s suggestions, Def. Sent. Mem. (dkt. 109) at ECF 7-8, the PSR

correctly scores the two-level obstruction of justice adjustment under U.S.S.G. § 3C1.1. “[T]o

apply § 3C1.1, the district court [is] required to make a finding that the defendant had the specific

intent to obstruct justice, i.e., that he knowingly lied with the purpose of obstructing the pre-

sentence investigation.” United States v. Chibuko, 744 F.3d 259, 267 (2d Cir. 2014). For a

defendant’s conduct to qualify as obstruction of justice, it must have the “potential to impede” the

investigation, prosecution, or sentencing of the defendant. United States v. McKay, 183 F.3d 89,

95 (2d Cir. 1999). The enhancement for obstruction of justice may be based on a defendant



1
 The government filed its first sentencing memorandum on May 24, 2024. See Dkt. 106. The
defense memorandum was timely based on adjournments granted by this Court.
         Case 3:22-cr-00082-DNH Document 111 Filed 08/26/24 Page 2 of 5




committing perjury. See U.S.S.G. § 3C1.1, cmt. n. 4(b). “‘A witness testifying under oath or

affirmation violates’ 18 U.S.C. § 1621, the federal perjury statute, ‘if she gives false testimony

concerning a material matter with the willful intent to provide false testimony, rather than as a

result of confusion, mistake, or faulty memory.’” United States v. Norman, 776 F.3d 67, 84 (2d

Cir. 2015) (quoting United States v. Dunnigan, 507 U.S. 87, 94, 113 (1993)). “[A]n enhancement

for obstruction of justice based on perjured testimony may be imposed only where the sentencing

court finds ‘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. Ben-Shimon,

249 F.3d 98, 102 (2d Cir. 2001) (quoting United States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997)).

       The record amply supports U.S.S.G. § 3C1.1’s application here. See, e.g., PSR ¶ 17. The

Court should easily conclude that the defendant’s false testimony was not the result of confusion,

a mistake, or faulty memory. Instead, the defendant made repeated material misrepresentations

about purported hackers obtaining loans on his behalf in a calculated effort to defeat the charges

at trial. The defendant stuck to those lies even though he could not explain why the supposed

hackers would have had the fraudulent loans’ proceeds deposited into the defendant’s bank account

and why he then elected to spend those proceeds on himself. This is not a simple case of confusion

or a defendant denying the allegations; rather, the defendant here brazenly lied to the Court in a

misguided attempt to evade justice. Accordingly, the Court should score an upward adjustment

under U.S.S.G. § 3C1.1. See Norman, 776 F.3d at 84-85 (affirming application of U.S.S.G. § 3C1.1

where district court found defendant’s testimony was intentionally false on material matters and

contradicted by other evidence).
            Case 3:22-cr-00082-DNH Document 111 Filed 08/26/24 Page 3 of 5




III.   This Court Should Not Vary Downward Because the Fraud Guideline is Structured
       to Increase with Loss Amount

       Onah asks this Court for a time-served sentence to reflect the Court’s “disagreement with

the fraud Guideline, which is not based on empirical data.” Def. Sent. Mem. (dkt. 109) at ECF 8-

9. Onah’s argument is misplaced because critiques about the fraud guideline being based on loss

amount redound to the favor of fraud offenders, like himself, who cause comparatively less loss

than other fraudsters.

       As courts have recognized and as the guidelines themselves make plain, the base offense

in U.S.S.G. 2B1.1 is low because the guideline is structured to reflect increases for loss as a proxy

for the seriousness of an offense. For example, the Background Commentary for U.S.S.G. § 2B1.1

explains:

                The Commission has determined that, ordinarily, the sentences of
                defendants convicted of federal offenses should reflect the nature
                and magnitude of the loss caused or intended by their crimes.
                Accordingly, along with other relevant factors under the guidelines,
                loss serves as a measure of the seriousness of the offense and the
                defendant’s relative culpability and is a principal factor in
                determining the offense level under this guideline.

(Emphasis added); see United States v. Algahaim, 842 F.3d 796 (2d Cir. 2016) (recognizing “low

base offense level” and enhancements for loss might create artificially high guidelines relative to

culpability in certain cases with high loss amounts). Likewise, as the Second Circuit explained in

Algahaim:

                The Commission could have approached monetary offenses quite
                differently. For example, it could have started the Guidelines
                calculation for fraud offenses by selecting a base level that
                realistically reflected the seriousness of a typical fraud offense and
                then permitted adjustments up or down to reflect especially large or
                small amounts of loss. . . . . Where the Commission has assigned a
                rather low base offense level to a crime and then increased it
                significantly by a loss enhancement, that combination of
         Case 3:22-cr-00082-DNH Document 111 Filed 08/26/24 Page 4 of 5




               circumstances entitles a sentencing judge to consider a non-
               Guidelines sentence.

Id. at 800.

        Onah received a 12-level enhancement because he caused a loss of more than $250,000 but

less than $550,000. See PSR (dkt. 103) ¶ 56 (citing U.S.S.G. § 2B1.1(b)(1)(G)). But for the sliding

scale of enhancements based on loss, there is no reason to assume that the base offense level for

fraud would be 7 rather than, for example, 30 (the top of the loss table) with a corresponding

reduction if a fraud happened to involve minimal loss. See generally Algahaim, 842 F.3d at 800.

Onah’s argument thus relies on the structure of the guideline where it helps him (artificially low

base offense level) but eschews the same guideline when it results in enhancements.

Fundamentally, Onah’s guideline recommended sentence of 33-41 months is a fair reflection of

the seriousness of his fraud, as proved to this Court during the bench trial and as described in detail

in the PSR. Algahaim reflects only that this Court should assess whether the guideline reflects a

fair sentence, which is the case here. See United States v. Moose, 893 F.3d 951, 959 (7th Cir.

2018) (fraud guideline produced reasonable recommended sentence for sole perpetrator of fraud

who “put in his pocket $480,000 that he obtained under false pretenses”).

        Additionally, in fraud cases, it is critical that the sentence imposed send a strong message

not only to this defendant but also to all would-be fraudsters that this type of misconduct—stealing

crucial benefits meant for those who truly needed it in a desperate time—will be met with serious

consequences. As numerous U.S. Courts of Appeals have recognized, “[b]ecause economic and

fraud-based crimes”—like those committed by the defendant here—“‘are more rational, cool, and

calculated than sudden crimes of passion or opportunity,’ these crimes are ‘prime candidate[s] for

general deterrence.’” United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006) (quoting

Stephanos Bibas, White-Collar Plea Bargaining and Sentencing After Booker, 47 Wm. & Mary L.
         Case 3:22-cr-00082-DNH Document 111 Filed 08/26/24 Page 5 of 5




Rev. 721, 724 (2005)); see also, e.g., United States v. Mueffelman, 470 F.3d 33, 40 (1st Cir. 2006)

(noting that the “deterrence of white-collar crime” is “of central concern to Congress”); United

States v. Sample, 901 F.3d 1196, 1200 (10th Cir. 2018) (“Congress has recognized that general

deterrence is particularly important in the context of white collar crime”). The defendant, and

others like him, should be deterred from thinking that they can defraud lenders with impunity.

And the public should have faith that such significant misconduct during a crisis will be met with

serious consequences. This is yet another reason why a guidelines sentence should be imposed.



                                                 CARLA B. FREEDMAN
                                                 United States Attorney

                                                 /s/ Michael D. Gadarian
                                         By:
                                                 Michael D. Gadarian (Bar Roll No. 517198)
                                                 Joshua R. Rosenthal (Bar Roll No. 700730)
                                                 Assistant United States Attorneys


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