Elder online dating fraud convictions upheld at 7th Circuit

IL file photo

There was sufficient evidence to convict a man for his role in a scheme to defraud people over 50 out of hundreds of thousands of dollars in an online dating scheme, the 7th Circuit Court of Appeals affirmed Wednesday.

The man, Edwin Agbi, was born and raised in Nigeria but has been  a resident of the United States since 2016.

As part of a scheme with school friends in Nigeria, Agbi’s friends created accounts on an online dating platform for people over the age of 50, impersonated other individuals on that platform and struck up online relationships with their selected victims. The friends then urged their victims to wire money and send cash, Bitcoin and gift cards.

Agbi’s apartment in Indianapolis acted as a collection point for the revenue. He allowed his friends to use his address but did ask on occasion that the packages be addressed to pseudonyms such as “Kareem Sunday” or “Kareem Monday.”

When he received a package, Agbi took a “cut” and then transferred the remainder into bank accounts in Nigeria.

The federal government started to uncover the scheme when it received a report of suspicious activity tied to a bank account belonging to another participant, Angeles Palacios. Palacios had been receiving large sums of money from various individuals, including E.M., a widower tricked into thinking he was in a relationship with a nonexistent “Elizabeth Stevens.”

Secret Service agents contacted and interviewed E.M., who explained that he was sending money to someone he believed to be “Elizabeth Stevens” but whom he had not yet met.

E.M. also told the Secret Service that he had just prepared a package containing $20,000 in cash to send to “Kareem Sunday” in Indianapolis, whom he believed was a friend of “Stevens.” Secret Service intercepted that package, removed the cash and conducted a controlled delivery to Agbi’s home.

After Agbi picked up the package, Secret Service agents confronted him. He was subsequently arrested and charged with mail fraud, use of a fictitious name in furtherance of mail fraud, conspiracy to commit mail fraud and conspiracy to commit money laundering.

More than two and a half years after he was arrested, and with his trial scheduled in just over one month, Agbi’s counsel notified the government that he intended to pursue a duress defense at trial. His counsel said the Nigerian conspirators had threatened Agbi’s mother and sister, so he participated in the scheme to protect them.

The federal government filed a motion in limine to preclude Agbi from pursuing the duress defense, which the U.S. District Court for the Southern District of Indiana granted.

After a trial, a jury found Agbi guilty on all four counts.

Agbi filed a motion for judgment of acquittal or, in the alternative, for a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure. He argued that the evidence was insufficient on all four counts, that the trial was infected with anti-Nigerian nationality bias, and that the court improperly allowed inflammatory evidence.

The district court denied the motion.

He was then sentenced to 57 months in prison plus two years of supervised release for each of the counts, to be served concurrently. In sentencing him, the court applied a 10-level enhancement for causing a loss of between $150,000 and $200,000, plus a two-level enhancement for obstruction of justice.

Agbi appealed and challenged the sufficiency of the evidence presented on each of the four charged offenses. He also contended that the district court erred in applying the two-level obstruction-of-justice enhancement.

The 7^th Circuit affirmed the district court’s judgment, finding that legally sufficient evidence supported every count of the indictment and that the district court appropriately employed the obstruction enhancement.

Senior Judge Kenneth Ripple wrote the opinion for the appellate court.

According to Ripple, evidence that Agbi repeatedly requested that packages sent to him use various fake names — which he is unlikely to have done if he were working for a legitimate enterprise — was more than sufficient to permit the jury to conclude that he had the intent to defraud.

Ripple noted that at trial, the jury heard a recording in which Agbi admitted to asking one of his friends to address the package the government intercepted to “Kareem Sunday.” The jury also saw messages indicating that Agbi asked to have other packages addressed to “Kareem Monday.”

“This evidence, along with the evidence that Mr. Agbi engaged in mail fraud, easily provides legal support for Mr. Agbi’s conviction on this count,” Ripple wrote, referring to the use-of-a-fictitious-name charge.

As for conspiracy to commit mail fraud, the 7^th Circuit determined that Agbi’s extensive communications with his confederates, the prompt transfers of money into Nigerian bank accounts and his keeping a portion of the proceeds all refuted his contention that he was not part of a conspiracy.

The appellate court also disagreed with Agbi’s contention that the government failed to prove he entered into a money laundering conspiracy with the intent to further it, with Ripple citing the unusual nature of Agbi’s transactions, the prompt transfers, his retention of a cut and other evidence indicating his knowledge of the nature of the scheme.

Finally, Ripple wrote that the district court did not clearly err in applying the obstruction-of-justice enhancement at sentencing.

“Here, the Government contended — in part through testimony that the district court found credible — that Mr. Agbi suddenly disclosed the threats and reports right before trial (after not mentioning it previously),” Ripple wrote. “It was reasonable for the district court to have inferred from Mr. Agbi’s failure to mention the threats earlier that they did not occur and that raising them was a ‘last-ditch effort to try to salvage something.’”

Judges Joel Flaum and Michael Scudder concurred.

The case is United States of America v. Edwin Agbi, also known as Kareem Sunday, 22-2573.