UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

) 12 CR 190

v. )

) Judge Rebecca R. Pallmeyer

ABIDEMI AJAYI )

)

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION FOR 

JUDGMENT OF ACQUITTAL AND MOTION FOR A NEW TRIAL

The UNITED STATES OF AMERICA, by ZACHARY T. FARDON, United 

States Attorney for the Northern District of Illinois, hereby opposes the motion of 

defendant ABIDEMI AJAYI to set aside the jury’s guilty verdict or, in the

alternative, for a new trial. For all of the reasons set forth below, defendant=s motions

should be denied in their entirety.

I. BACKGROUND

The trial of the above-captioned matter began with jury selection on December 

2, 2013. The trial resumed on December 5, 2013, and the government rested its 

case-in-chief December 6, 2013. R. 52.1 Defendant then moved for a judgment of 

acquittal pursuant to Federal Rule of Criminal Procedure 29(a). This Court reserved 

its decision on the motion, in accordance with Rule 29(b). Defendant then testified.

 

 1 As a transcript of the trial proceedings has not been ordered, the government=s 

recitation of in-court procedural history is based upon the collective memory of the 

government=s prosecution team. Docketed items are referenced by AR.@ followed by the 

particular docket item number.

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The jury convicted defendant of six of the counts charged against him in the 

indictment, namely, five counts of bank fraud, in violation of Title 18, United States 

Code, Section 1344 (Counts One through Three, Five, and Six), and one count of 

money laundering, in violation of Title 18, United States Code, Section 1957(a) 

(Count Four). R. 52. After the return of the verdict, this Court entered a judgment of 

guilt based upon the jury=s verdict. Id. By entering a judgment on the jury=s verdict, 

this Court denied the defendant=s pending Rule 29(a) motion.2

Defendant has now renewed his motion for acquittal pursuant to Rule 29(c)(1) 

(ARule 29 Motion@) and, in the alternative, for a new trial under Rule 33 (ARule 33 

Motion@). For the reasons given herein, defendant=s motions should be denied.

II. ARGUMENT

A. Rule 29 Motion

Rule 29 provides that a defendant may move for judgment of acquittal 

following the jury=s verdict for Aany offense for which the evidence is insufficient to 

sustain the conviction.@ See Rule 29(a) and (c). AThe issue on a motion under Rule 

29(c) is the same as the issue on appeal: whether the evidence, taken in the light 

most favorable to the verdict, permits a sensible person to find beyond a reasonable 

doubt that the defendant committed the crime alleged.@ United States v. Genova, 333 

F.3d 750, 757 (7th Cir. 2003). The defendant=s Rule 29 Motion should be denied 

 

 2 The government does not recall the Court expressly denying the Rule 29(a) motion on 

the record, although it is certainly possible that the Court did so and the government failed 

to note it. In any event, the government construes the Court=s entry of judgment on the guilty 

verdict as an implicit denial of that motion.

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because any sensible juror could have easily found the defendant guilty of each of the 

offenses for which he was convicted. Indeed, against the trial record, it would have 

been an insensible juror who would have concluded otherwise.

By way of a general summary, the government=s evidence at trial involved the 

testimony of five witnesses and the introduction of approximately a dozen exhibits. 

The government’s witnesses were Daniel Corcoran, assistant vice treasurer of the 

victim company whose check was altered (and subsequently deposited in defendant’s 

bank account); James O’Shea, a senior investigator in the Global Security and 

Investigations unit from JP Morgan Chase; Dawn Hardwick, another member of 

Chase’s Global Security and Investigations unit; Miguel Duenas, a Chase bank teller; 

and Postal Inspector Brett Erickson.

Corcoran testified about the procedures at the victim company and how checks 

were cut and mailed out. Corcoran also testified about how he discovered that the 

check at issue had been altered and deposited into a bank account unknown to the 

victim company. Corcoran testified that no one at the victim company authorized the 

alteration of the check or its deposit in defendant’s bank account.

O’Shea testified about Chase documents that established defendant’s control 

of the GR Icon account. O’Shea testified about the account signature card for the GR 

Icon account, as well as the customer summary that reflected active ATM cards for 

an account. He also testified about Chase’s internal investigation into the deposit of 

the altered check. O’Shea also laid a foundation for other critical trial exhibits, 

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including video stills of defendant conducting the transactions at issue, internal 

Chase documents regarding ATM activity on the GR Icon account, the cashed checks 

defendant wrote to himself on the GR Icon account, documents recording teller 

transactions, and the GR Icon bank statements during the late 2009 time period. 

Hardwick testified about Government Exhibit Wire Record, which 

documented how the $53,000 wire transfer from defendant’s account was 

accomplished. As Hardwick explained, defendant was required to provide the 

destination account number of the wire transfer he wanted to make. Hardwick was 

also able to determine where the transaction was conducted and when. Specifically, 

the wire transfer was conducted in a Near North Chase branch; other evidence 

offered by the government showed that the wire transfer happened immediately after 

defendant cashed a check he wrote to himself, and just before he traveled to a 

different Chase branch to cash another check.

Duenas testified about the procedures a teller must follow to cash a check 

presented by a customer. Duenas testified that a teller must determine if a check 

drawn on Chase account. If the check is drawn on a Chase account and the 

transaction is a cash withdrawal over $2,000, the teller would need to see two forms 

of identification. If the cash withdrawal is over $5,000, two forms of identification 

and manager approval was required. The teller would check the customer’s signature 

against a signature in Chase’s internal files. The teller would also check the date the 

account was opened and the last deposit date, and would confirm that there were no 

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holds or stops on the account. The teller would then seek manager approval.

Finally, Inspector Erickson testified. Inspector Erickson testified about how 

the Postal Inspection Service learned about the deposit of the altered check into the 

GR Icon account. He testified about the history of GR Icon, including its repeated 

dissolutions by the Illinois Secretary of State for failing to file the documents or pay 

the fees required to keep the entity registered with the state.

Inspector Erickson also testified about a summary chart that documented the 

GR Icon’s accounts balances, withdrawals and deposits during the course of the 

account’s existence, as well as about the account statements in November and 

December 2009. Inspector Erickson’s testimony established that before the altered 

check was deposited, the GR Icon account had never had a monthly ending balance 

higher than $12,000. In 2009, before the deposit of the altered check, the largest 

deposit was just $6,000 and the highest ending monthly balance was $331. His 

testimony also established that at the beginning of November 2009, the account had 

a balance of just $90.08. 

Inspector Erickson also testified about the unusually large activity on the GR 

Icon account in the days after the altered check cleared. Inspector Erickson testified 

about the rapid manner in which defendant traveled from bank to bank throughout 

Chicago to make the withdrawals, conducting multiple withdrawals in a day over the 

four days between the check being cleared and the fraud’s detection. He testified that 

defendant himself made each withdrawal, presenting his driver’s license or state 

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identification card at each transaction. Through Inspector Erickson, the government 

presented numerous photographs of defendant conducting the cash withdrawals 

charged in the indictment. Inspector Erickson also testified about additional 

purchases, made with defendant’s debit card, that were also conducted in that same 

time period.

When considered in its entirety, the government’s evidence amply supported 

the verdicts convicting defendant of bank fraud and money laundering. The evidence 

showed that defendant did not have a functioning business at the time he received 

the victim company’s check. The evidence showed that defendant had less than $100 

in the GR Icon account at the start of November 2009, and in fact defendant never 

had an ending monthly balance above $400 in his business account in 2009. The 

evidence showed that defendant personally deposited the altered check into his bank 

account, and as soon as the check cleared, defendant began rapidly withdrawing 

cash, making multiple transactions a day and a $53,000 wire transfer at numerous 

banks across Chicago in the four days before the fraud was detected. The totality of 

the evidence established that defendant acted knowingly and that he intended to 

defraud Chase bank. 

Defendant argues, however, that the government failed to meet its burden and 

that the verdicts should be set aside. First, defendant suggested that the Court 

should grant its motion because of a lack of evidence in the record that defendant was 

involved in procuring or altering the check. Defendant was acquitted on one count –

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possessing and using an altered check. Based on the jury’s verdict on that count, it is 

fair to say that the jury agreed that the evidence was insufficient to convict 

defendant of that violation. Defendant is incorrect in arguing, however, that a 

deficiency in evidence regarding the possession of the altered check is fatal to the five 

counts of bank fraud for which defendant was convicted. How defendant received the 

altered check is not an element of bank fraud. Regardless of whether defendant 

personally altered the check or knew at the time he deposited the check that it had 

been altered, his behavior once the check cleared makes evident why the jury 

convicted defendant of bank fraud. Defendant deposited the altered check on 

November 27, 2009. The altered check did not clear until December 7, 2009. Between 

December 9 and December 12, 2009, defendant wrote seven checks to himself and 

conducted the wire transfer. He conducted a number of other debit card transactions, 

including spending thousands of dollars on electronics and hundreds of dollars at a 

clothing store, as revealed by the GR Icon bank statements. His conduct over those 

four days – conducting several transactions rather than just one to withdraw the 

funds, traveling to multiple banks a day, withdrawing cash rather than procure a 

cashier’s check or some other bank instrument, writing checks to himself rather than 

vendors or other business associates – all support a determination that defendant 

was not engaged in legitimate business transactions. Even if defendant did not know 

in November 2009 that the check had been altered, defendant’s conduct a few weeks 

later is sufficient to support the jury’s verdict. His conduct was sufficient to allow a 

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reasonable jury to find beyond a reasonable doubt that defendant knew that he was 

not entitled to the funds and had to empty the account as quickly as possible before 

the mistake was discovered.

Defendant also argues that even including the evidence provided during the 

defense case, the Court should grant his motion for acquittal. Defendant was the sole 

defense witness. The only evidence presented to the jury that contradicted the 

government=s theory of the case or that otherwise supported the defendant’s various 

defense theories was defendant’s incredible testimony. Defendant testified that he 

received the check in question from a man named Charles Brown, who defendant met 

on a flight to London and persuaded to invest in his nascent mobile MRI business. 

Defendant testified that he expected an investment of approximately $45,000, and 

when he asked Brown why the check was for more than $344,000, Brown attributed 

it to a payroll error and told defendant to deposit the check and withdraw the 

balance. Defendant testified that Brown urged him to deposit the check immediately, 

and so within an hour of receiving the check, defendant deposited it via ATM because 

he couldn’t make the time to find a parking space and instead double-parked on 

Dearborn Street in downtown Chicago. Defendant also testified that after depositing 

the check, he had a number of telephone conversations with Brown, who 

subsequently arrived in Chicago from Los Angeles without informing defendant 

ahead of time and immediately demanded the cash balance from the erroneously cut 

check. Defendant testified that he made the cash withdrawals at Brown’s 

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instruction, and made the wire transfer as directed by Brown to a company 

defendant believed Brown controlled. Defendant testified that he had no records 

supporting his testimony that he returned the money to Brown. Defendant stated 

that as he grew concerned and weary of conducting the cash withdrawals, he told 

Brown that he had written Brown a check for the remaining he owed Brown (close to 

$130,000), at which point Brown disappeared and turned off his phone, never to be 

heard from again.

Defendant argues that the Court should grant his motion for acquittal because 

his testimony established that he acted in good faith by relying on Brown’s 

representations and instructions. The jury’s verdict is a clear repudiation of the idea 

that “defendant honestly believed the validity of that which the government has 

charged as being fraudulent.” Nothing in defendant’s testimony supported a 

determination that he acted in good faith. He testified that a man he had known for a 

few hours agreed to invest $45,000 in a business defendant had not gotten off the 

ground, and despite Brown’s supposed business savvy and apparent financial 

liquidity, Brown ran a business where a check was made out for $300,000 more than 

intended, and was unwilling or unable to reissue the check. Defendant testified that 

he immediately drove to the bank to deposit the check because he was instructed to 

do so. Defendant testified that he made multiple large-dollar cash withdrawals at 

Brown’s urging, meeting Brown at a hotel to turn the money over. Everything about 

defendant’s testimony was unbelievable, and the defense presented no evidence that 

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undercut the government’s evidence.

Any sensible juror would have easily convicted defendant of the bank fraud 

and money laundering counts in the indictment based on the government’s evidence.

Defendant’s testimony only provided additional fodder to believe that defendant 

knowingly engaged in numerous transactions designed to take as much money from 

Chase as possible. As the evidence establishing each element of the charged offenses

is more than sufficient to prove the defendant=s guilt beyond a reasonable doubt, the 

defendant=s Rule 29 Motion should be denied.

II. Rule 33 Motion

Rule 33 provides that, A[u]pon the defendant=s motion, the court may vacate 

any judgment and grant a new trial if the interest of justice so requires.@ The 

defendant=s burden on a Rule 33 motion is substantial:

A jury verdict in a criminal case is not to be overturned lightly, and 

therefore a Rule 33 motion is not to be granted lightly. But if the judge 

believes there is a serious danger that a miscarriage of justice has 

occurredBthat is, that an innocent person has been convictedBhe has the 

power to set the verdict aside, even if he does not think that he made 

any erroneous rulings at the trial.

United States v. Morales, 902 F.2d 604, 605-06 (7th Cir. 1990) (citations omitted).

In this case, defendant has moved for a new trial based upon one alleged error 

committed by this Court: sustaining the government’s objections to emails defendant 

wanted to introduce at trial. Defendant sought to offer the emails to prove that at the 

time of the fraud, he had a legitimate business. The existence of such a business, 

defendant argues, undermines any determination that he was acting with the

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requisite intent to defraud when he engaged in the charged transactions.

The first chain of emails is dated July 20 and 21, 2009. The chain consists of an 

email from defendant to an individual in which defendant asked for price quotes for 

used imaging devices. An individual from the recipient company (hereinafter 

Company X) asked for defendant’s brand preferences and other needs. There is no 

response from defendant in the email chain. The second chain of emails begins on 

December 9, 2009 and ends December 30, 2009. In it, defendant receives a quotation 

from Company X he contacted in the July 2009 emails, and then receives several 

additional emails from a third party (Individual Z) about additional needs. In the 

final email, defendant emails Company X and asks for a brochure from Company X, 

explaining “I know this sounds very vague,” but asking for a brochure to be mailed to 

him in Nigeria. Defendant’s signature block reflects a company called First Point 

Energy World Ltd. The third email is dated January 16, 2010 from defendant to 

Individual Z, in which defendant forwards photographs of an unidentified college of 

medicine, and states, “We should be doing the MRI/CT equipment installations. I will 

keep you posted as soon as there is any progress.” Defendant’s signature block again 

contains the name of First Point Energy World Ltd.

The Court correctly precluded defendant from introducing the emails at trial.

The emails defendant sought to introduce were not relevant and amounted to 

hearsay. Defendant argues, however, that the emails between defendant and third 

parties unrelated to this litigation, tended to show that defendant had a legitimate 

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investor and thus was engaged in correspondence to procure MRI equipment.

Defendant’s argument must fail. First, defendant failed to establish the 

relevance of the emails. Defendant argues that the emails were relevant to 

establishing that defendant was engaged with a legitimate investor in his business, 

and thus at the time he deposited the altered check, he was acting in good faith. The 

email correspondence was with individuals unrelated to the victim company or 

defendant’s alleged investor, Charles Brown. Further, the emails from defendant 

bore a signature for an unrelated company, First Point Energy World Ltd., rather 

than GR Icon, the entity to which the altered check was made out. To the extent 

defendant wanted to introduce evidence regarding his work at building a mobile MRI 

equipment business, he was allowed to introduce Powerpoint slides of regarding the 

information he purportedly showed Brown during their initial meeting. Nothing in 

the emails supported defendant’s contention that he believed that Brown (or the 

account holder on the victim check) had issued the altered check to GR Icon.

Additionally, the emails defendant sought to introduce constituted 

inadmissible hearsay. Defendant stated that “[t]he emails tended to shed light on 

Ajayi’s state of mind because they would have helped to establish he was engaged in 

legitimate business activity.” Dkt. # 58 at 7. In fact, defendant sought to introduce 

the emails to prove the matter asserted therein – that defendant had solicited quotes 

for MRI equipment and was engaged in a legitimate business. See Fed. R. Evid. 

801(c)(2); United States v. Fluker, 698 F.3d 988, 1000 (7th Cir. 2012). Defendant 

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failed to produce business records kept in the regular course of his purportedly 

legitimate business, or any other documents that fall within Rule 803’s exceptions to 

the hearsay rule. Because defendant sought to introduce the emails precisely to show 

that he was in talks about the costs of MRI equipment – and not to show his state of 

mind regarding an intent to defraud (about which the emails are entirely silent, 

being as they do not involve his victims or his purported investor), the emails were 

properly excluded.

Defendant=s arguments lack merit and, therefore, he fails to satisfy his Rule 33 

burden of establishing that Athere is a serious danger . . . that an innocent person has 

been convicted. For these reasons, defendant’s motion for a new trial should be 

denied in its entirety.

IV. CONCLUSION

WHEREFORE, the government respectfully requests that defendant=s motion 

to set aside the verdict and, in the alternative, his motion for a new trial should each 

be DENIED in their entirety.

Respectfully submitted,

ZACHARY T. FARDON

United States Attorney

By: /s/ Yasmin N. Best 

YASMIN N. BEST

NICOLE M. KIM

Assistant United States Attorneys

 219 South Dearborn Street

 Chicago, Illinois 60604

Dated: February 10, 2014 (312) 353-5300

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