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United States v. Nwoye

United States District Court, D. Columbia.

August 25, 2014

UNITED STATES OF AMERICA,
v.
QUEEN NWOYE, Defendant

Page 226

For QUEEN NWOYE, Defendant: A.J. Kramer, Neil Howard Jaffee, LEAD ATTORNEYS, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC; John O. Iweanoge, II, LEAD ATTORNEY, THE IWEANOGES' FIRM, P.C., Washington, DC; .

For USA, Plaintiff: Angela D. Hart-Edwards, LEAD ATTORNEY, SCHNADER HARRISON SEGAL & LEWIS, LLP, Washington, DC; Frederick Walton Yette, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Criminal Division, Washington, DC; James Stephen Sweeney, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

OPINION

PAUL L. FRIEDMAN, United States District Judge.

Page 227

This matter is before the Court following an evidentiary hearing on defendant's motion to vacate, set aside, correct sentence and conviction, and grant defendant a new trial pursuant to 28 U.S.C. § 2255. The first day of the evidentiary hearing was conducted before the trial judge, Judge Ellen Segal Huvelle, on March 13, 2014. Unable to complete the hearing that day, Judge Huvelle continued the hearing to a later date. In the interim, Judge Huvelle became unavailable to conduct the remainder of the hearing due to injury. The pending motion then was referred to the undersigned by consent. See Loc. Crim. R. 57.13(a). In advance of resuming the hearing on July 29, 2014, the undersigned familiarized himself with the record, as required by Rule 25 of the Federal Rules of Criminal Procedure and Rule 63 of the Federal Rules of Civil Procedure. See Fed. R. Governing Section 2255 Proceedings for the United States District Courts 12 (applying both Federal Rules of Criminal Procedure and Federal Rules of Civil Procedure to Section 2255 proceedings absent direct contradiction with the authorizing statute). The parties further consented to this transfer on the record at the hearing on July 29.

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Defendant argues that her trial counsel was ineffective for failing to call an expert witness on battered woman's syndrome (" BWS" ), on the theory that had the trial judge heard such testimony she would have given a duress instruction and, as a result, at least one juror would have voted for acquittal. Upon consideration of the papers filed by the parties, the transcript of the trial and other relevant proceedings, the evidence presented during the two-day evidentiary hearing, and the entire record in the case, the Court will deny defendant's motion.[1]

I. BACKGROUND

A. Facts

In 2002, defendant Queen Nwoye, a Nigerian living in the United States, was working as a pharmacy technician. See United States v. Nwoye, 663 F.3d 460, 461, 398 U.S.App.D.C. 298 (D.C. Cir. 2011); see also Trial Tr., 10/30, at 88. One day, she noticed the name of one of the prescribing physicians, Dr. Ikembe Iweala, and, based on his name, suspected that they were from the same region of Nigeria. Ms. Nwoye called Dr. Iweala in the hopes that the two could meet. They did meet and soon became friends and, though both were married, eventually became lovers. See United States v. Nwoye, 663 F.3d at 461; Trial Tr., 10/30, at 90-93.

Though it is not entirely clear from the record exactly how long their affair lasted, it is clear that by 2005 it had ended.[2] That same year, Ms. Nwoye separated from her husband -- though they continued to live in the same home. Soon after this separation, Ms. Nwoye began a romantic relationship with another Nigerian living in the United States named Adrienne Osuagwu (who, unbeknownst to Nwoye, was also married). United States v. Nwoye, 663 F.3d at 461. This relationship quickly turned abusive. As Ms. Nwoye testified at trial, Mr. Osuagwu physically abused her for the first time in December 2005, when he travelled to Nigeria to see her while she was there to attend her father's funeral. Trial Tr., 11/1, at 369-70. This abuse did not end in Nigeria, however, and over the next several months there were additional acts of physical abuse. According to Ms. Nwoye's testimony at trial, Mr. Osuagwu slapped her with an open hand, hit her with his shoes, and " would end up beating me up like a drum and I was just helpless." Id. at 372.

In addition to her testimony about Mr. Osuagwu's physical abuse, Ms. Nwoye also testified at trial about Mr. Osuagwu's emotionally abusive behavior and his efforts to take financial control over her. For example, in January 2006, according to Ms. Nwoye, Mr. Osuagwu forced her to move out of her husband's home and into an

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apartment in Maryland that he rented for them. He also forced her to provide him with her ATM cards and PIN numbers. See Trial Tr., 11/1 at 360-61. Using this financial information, Osuagwu purchased a California home in Ms. Nwoye's name without her knowledge or consent. While Ms. Nwoye lived in their shared apartment in Maryland, Mr. Osuagwu took several trips to California, spending between three days and a week at a time. Id. at 364-68, 381. When Mr. Osuagwu was not present in Maryland, Ms. Nwoye testified, he required her to wear a wireless earpiece at all times so that she could answer his calls, even while she attended her nursing school courses. See id. at 443. Mr. Osuagwu also allegedly told Ms. Nwoye that he was a retired FBI agent. See Trial Tr., 10/30, at 98, 166; Trial Tr., 10/31, at 400.

In February 2006, Ms. Nwoye disclosed her earlier affair with Dr. Iweala to Mr. Osuagwu. See United States v. Nwoye, 663 F.3d at 462; Trial Tr., 10/31, at 309. Because Dr. Iweala's wife was a high-ranking Nigerian government official, Mr. Osuagwu decided to use this information in order to extort money from Dr. Iweala. Between February and April of 2006, Dr. Iweala paid Mr. Osuagwu and Ms. Nwoye a total of $185,000. United States v. Nwoye, 663 F.3d at 462. Though Ms. Nwoye's specific role in the extortion plot was greatly disputed at trial, it is undisputed that on three occasions she met with Dr. Iweala alone and collected money from him directly. On one of these occasions, on March 10, 2006, Ms. Nwoye met Dr. Iweala in a hospital parking lot and suggested they there engage in sexual relations. Trial Tr., 10/30, at 116-18. Just as Dr. Iweala began to unzip his pants, Mr. Osuagwu, who was waiting nearby, took a series of photographs in order to extort additional money from Dr. Iweala. Id. Ms. Nwoye testified at trial that Mr. Osuagwu forced her to participate in this scheme. Trial Tr., 11/1, at 373-74.

Ultimately, in April or May of 2006, Dr. Iweala decided that he would no longer be blackmailed and informed his wife about his affair. Trial Tr., 10/31, at 213. He also informed Mr. Osuagwu and Ms. Nwoye that he was done paying them money to cover up the affair and, unbeknownst to Mr. Osuagwu and Ms. Nwoye, contacted the FBI. Id. at 214.

Ms. Nwoye continued to live in Maryland with Mr. Osuagwu. In either June or July of 2006, she visited him in California. See Mar. 13 Tr. Evid., at 82-83, 88. Soon after the trip to California, Ms. Nwoye learned that Mr. Osuagwu was married to another woman. Id. at 86. She then broke off the relationship and returned to her husband. Trial Tr., 11/1, at 381. She also contacted the Nigerian Economic and Financial Crime Commission (" EFCC" ) on two occasions to inform it of Mr. Osuagwu's criminal activities: first in June 2006 by telephone and again in August 2006 by e-mail. Id. at 380-81.

B. Trial

On November 16, 2006, Ms. Nwoye and Mr. Osuagwu were arrested and charged with extortion, in violation of 18 U.S.C. § 875(d). Mr. Osuagwu pled guilty, while Ms. Nwoye decided to proceed to trial. She was initially represented by an attorney from the Federal Public Defender's Office. Then, at the urging of friends and family, she retained a private attorney named Stanley Baritz to represent her at trial. Mar. 13 Tr. Evid., at 61. The day before trial was scheduled to begin, however, Mr. Baritz informed the Court at a status conference that his client wanted to retain new counsel. See Sept. 17 Tr., at 2-3. According to Ms. Nwoye, she and Mr. Baritz had difficulty communicating. See Mar. 13 Tr. Evid., at 79. The Court therefore allowed Mr. Baritz to withdraw from

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the case and permitted John Iweanoge, whom Ms. Nwoye had retained, to enter an appearance on her behalf. Ms. Nwoye explained at the evidentiary hearing that she hired Mr. Iweanoge because he better understood her since Mr. Iweanoge is also of Nigerian descent and speaks her native language. Id.

At the status conference, Mr. Iweanoge asked for a continuance of the trial scheduled to begin the following morning, so that he could prepare for trial. See Sept. 17 Tr., at 3-4. He said:

Judge, I've spoken to Mr. Baritz. And the way the case is prepared to proceed at this point will be slightly different from the way I would proceed with the case if I was to try it. Right now from the trial transcript there are no other defense witnesses. There are no defense witnesses, let me put it like that. I would like an opportunity at least [a] very short opportunity to one, investigate the case a little further. And then two, while investigating the case and preparing for trial [to] be able to speak to my client further about the possibility of a disposition and then talk to the United States further.
I started the conversation before Your Honor took the bench. And then additionally and more importantly, there may be a likelihood based on the information that Ms. Nwoye has brought to my attention to date that they may be using expert witnesses, more than likely a psychologist, but I haven't made that full determination because I haven't even gotten a copy of the file to even look at the trial discovery to be ready for trial tomorrow, judge.

Id. Judge Huvelle granted Mr. Iweanoge's request and continued the trial for six weeks. See id.

Despite Mr. Iweanoge's request for additional time to consider calling a psychologist as an expert witness, no such expert witness was ever noticed or called. The only witness to testify on behalf of Ms. Nwoye at trial was Ms. Nwoye herself. See Trial Tr., 10/31, 285-87. Before Nwoye began testifying and outside the presence of the jury, the government argued that " as a matter of law, unless she can show that she was in imminent physical danger, then [Mr. Iweanoge] should not be allowed to ask questions to suggest that she was either a battered woman or under any kind of duress because it's not here." Id. at 294. Judge Huvelle disagreed, explaining that " frankly, my view is [that] she can tell her story." Id. at 296. After Ms. Nwoye had begun her testimony, the government renewed its objection, and Judge Huvelle decided that the prudent course would be for defense counsel to make a factual proffer outside the presence of the jury as to what his client's further testimony likely would be. Mr. Iweanoge made this proffer and the Court recessed for the day to consider the issue.

When the parties returned the following morning, the government withdrew its objection and stated that " our position is we are not going to seek to prevent her from testifying. But our position is she's still not going to be entitled to the duress instruction." Trial Tr., 11/1, at 356. In response, Judge Huvelle concluded that " given the Government's position, I'm certainly not going to stop her from testifying. I think that her testimony will be permitted given the Government's position. Then whether or not we do anything in terms of the instruction, the Government's position will be she hasn't made out a prima facie case." Id.

Ms. Nwoye continued her testimony, after which the defense rested. Mr. Iweanoge then requested that the jury be instructed on the affirmative defense of

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duress. Judge Huvelle denied Mr. Iweanoge's ...


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