Obinwanne Okeke, the 32-year-old Nigerian arrested in the United States last August, has accused the Federal Bureau of Investigation of accessing his mobile phones and laptops illegally, a development he said was enough ground for the charges against him to be dismissed.
Mr Okeke, through his lawyers, said in a preliminary objection filed in the U.S. court in December that his phones were seized by the F.B.I. agents that arrested him and searched without proper procedure.
The lawyers said when Mr Okeke was arrested at the airport while waiting to depart for Nigeria in August 2019, federal agents asked him to unlock his iPhone and Macbook Pro without first reading him his Miranda rights. The rights involve telling a suspect under arrest they have the right to remain silent and not cooperate with authorities, especially when the suspect has not contacted a lawyer.
Mr Okeke's lawyers, The Iweanoges Firm, said the Nigerian businessman was not told he had a right not to provide passwords to his devices to F.B.I. or other American authorities, which made him assume he had no choice but to give them the codes.
In the preliminary objection, the lawyers further argued that all evidence obtained from Mr Okeke's phones and laptops should fall under the 'fruit of the poisonous tree' doctrine and subsequently removed from admissible evidence in court during trial.
In the December 15, 2019 filing, the Iweanoges Firm said the F.B.I. held on to Mr Okeke's devices for more than two weeks after they arrested him and allegedly coerced him to release their passwords before obtaining a court warrant to search them.
This procedural mishap should render any evidence obtained from the devices useless, they said.
In their response, filed on January 24 in the United States District Court for the Eastern District of Virginia, where Mr Okeke is facing two counts of computer and wire fraud, the prosecutors said the defence lawyers were being frivolous with their allegations.
They said Mr Okeke was read his Miranda rights at about 11:35 p.m. on August 6, 2016, moments after he was taken into custody at the Washington Dulles International Airport and handed over to the F.B.I. airport command.
The prosecutors said Mr Okeke was informed he could remain silent, but he willingly agreed to let authorities search his devices by providing passwords to them.
The prosecutors further argued that even if it were true that Mr Okeke was not read his Miranda rights as his lawyers claimed, the evidence collected from his phone cannot be dismissed because they only corroborated evidence already collected in the year-long investigation into his alleged involvement in the $11 million fraud.
They also said since Mr Okeke is an educated adult with both undergraduate and graduate degrees, who has travelled extensively across the world over the years, then it cannot be argued that he did not know the implication of submitting his passwords for federal agents to collect information.
Mr Okeke became a prime person of interest after F.B.I. received complaints from Caterpillar, an American heavy equipment manufacturer, that some unscrupulous individuals had swindled its U.K. subsidiary, Unatrac, of $11 million. The fraud was allegedly committed through business email compromise, a trending fraudulent scheme involving the use of a company email to spoof other officials in the same organisation.
The F.B.I. said months of investigation exposed Mr Okeke as the principal suspect that executed the fraud. The agency later obtained a warrant for his arrest when he visited the U.S. and was about to return to Nigeria on August 6, 2019.
A few days after his arrest, Mr Okeke was indicted by a grand jury of committing the fraud based on preliminary evidence submitted by the F.B.I. But he later argued that he was not guilty, dragging the matter to trial.
A judge had previously fixed February 18 for the commencement of trial in the matter, but it was adjourned after preliminary objections from the defence team forced both parties to seek another date. Mr Okeke, however, remained in custody.
Ahead of the February 18 date initially scheduled for commencement of trial, the defence team began raising preliminary objections to get the matter dismissed and for Mr Okeke to return to Nigeria.
In the first objection, they argued that the F.B.I. had no powers to arrest Mr Okeke because he did not commit the offence on American soil. They also said no American victim, either as individuals or groups, was identified by authorities.
But prosecutors dismissed the lack of jurisdiction argument as frivolous because Mr Okeke visited the U.S. and stayed in Virginia during the period he allegedly committed the $11 million fraud, which spanned several months.
They also said more victims who are Americans may still be introduced during trial, saying their indictment filing was only to show enough grounds for a judge to issue a warrant for Mr Okeke to be arrested.
The second defence argument bordering on coercion of Mr Okeke was also rejected by the prosecutor. But both parties agreed that the court should approve additional time for preliminary matters to be resolved and Mr Okeke to remain in custody until trial evential begins.
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