R. v. Usifoh, 2017 ONCJ 451

ONTARIO COURT OF JUSTICE CITATION: R. v. Usifoh , 2017 ONCJ 451 DATE: June 29, 2017 BETWEEN HER MAJESTY THE QUEEN — AND — DAVIDSON USIFOH Before Justice H. Borenstein Heard on June 2 and 7, 2017 Reasons for Judgment released on June 30, 2017 Mr. Power.................................................................................................. counsel for the Crown Mr. Struthers and Ms.

Pinnock ................................................... counsel for Davidson Usifoh BORENSTEIN J.: [ 1 ] Davidson Usifoh is charged with numerous fraud and related offences arising out of what has been described as a phishing email scam emanating out of Nigeria and Dubai. Emails were sent to potential victims trying to lure them to send funds in relation to these fraudulent scams. There were inheritance scams, romance scams and a military service scam.

There is no issue these were fraudulent scams and that victims sent money. [ 2 ] Numerous victims in the United States and elsewhere received emails from unknown email accounts soliciting their help and asking that they send money to various accounts. Victims were directed to and sent money to the bank accounts and Western Union accounts belonging to the accused Davidson Usifoh. The Crown’s case was not contested. Usifoh concedes he received monies into his accounts and withdrew them or otherwise disposed of them. He maintains he did not know the funds were fraudulently obtained [ 3 ] Mr.

Struthers, in his customary fashion, focused the trial on the real issue in contention; namely, whether his client knew that the funds deposited into his accounts were fraudulently obtained. Usifoh testified and denied knowing or even suspecting that these funds were obtained by fraud. The accused was the sole defence witness. Numerous exhibits were filed on consent. [ 4 ] Usifoh had graduated from the two year paralegal course at Humber College and was in the process of writing his Law Society exams at the time.

He has since become a paralegal licenced by the Law Society of Upper Canada. [ 5 ] The issue to be decided therefore is whether the crown has proven beyond a reasonable doubt that Usifoh knew the funds were fraudulently obtained. Specific knowledge or wilful blindness is required. Recklessness in not enough. If Usifoh had that knowledge, or was willfully blind, guilt on all counts including the drivers licence count follows.

As conceded, the charges stand or fall together. [ 6 ] Before turning to the accused’s evidence, I will briefly synopsize some of these frauds and the movement of funds from the victims to the accused’s accounts. [ 7 ] Harry Tran is a resident of California. In late 2013, he received an email requesting his assistance to help an elderly woman pay the taxes on her deceased’s husband’s life insurance. In exchange, he was told that, if he did so, he would receive a portion of the $10,000,000 in life insurance proceeds. He was told not to tell anyone the truth about what he was doing. Mr.

Tran sent, and lost, a total of $200,000.00 to various accounts. He never received any money back. Mr. Tran was directed to deposit some of the funds into Usifoh’s personal bank account at the Bank of Montreal. He sent six transfers to that account between March and April 2014 for a total

of $60,398.80 Canadian. [ 8 ] Ms. Susan Waner is a widow living in Nebraska. In 2012, through a dating website, she met a male who called himself Michael Girnius. This male said he was also a widow and owned a construction firm in Toronto and had a large contract with a University. Waner and this male never met. They only communicated by email and phone. The male said he wanted to marry Ms. Waner. He told her that he lost an important hard drive containing sensitive information and had to close all his bank accounts. As a result, he could not pay his employees and his contract was in jeopardy. The male sent Ms.

Waner documents purportedly showing that he had millions of dollars in the bank. As a result, Ms. Waner wired or otherwise sent the male money through Western Union or Moneygram. Ms. Waner sent a total of $200,000.00 US to this male. Seven of the transfers between June 2012 and April 2013 were sent to the personal account of Usifoh. She sent him a total of $136,369.61 Canadian. [ 9 ] Ms. Hilyard, a resident of Utah, received an email from a woman saying she was dying of cancer and wanted to leave her ten million dollar estate to her but that Ms.

Hilyard needed to send money for inheritance documents to prove she was the lawful beneficiary. Ms. Hilyard was directed to send funds to various accounts. In April 2014, she sent $1,054.00 to Usifoh’s personal account. [ 10 ] Ms. Gilson lives in New Jersey. She had been contacted by someone calling himself Jasper Thomas of Gresham Securities. Thomas said he was trying to repatriate the bodies and property of two deceased members of the U.S. military from Afghanistan. She was asked to pay a series of fees to get the property out. She began sending funds.

Jasper Thomas then said he was arrested and jailed while trying to clear customs and asked Gilson to bail him out. On May 21, 2014 she wired $50,000.00 US to Usifoh’s paralegal bank account. In total, Ms. Gilson lost approximately $400,000.00 US in this scam including the $50,000.00 sent to the accused’s account. Accused’s alias - Mathias Oko-Oboh [ 11 ] It was conceded that the accused Usifoh had a driver’s licence in the name of Mathias Oko-Oboh. Further, that he opened a Western Union account in that same name. He opened it years before these allegations.

It was also agreed that, between 2008 and July 15, 2013, he received 18 wire transfers into that account some of which are implicated in this fraud.

Whenever monies were sent to that account, he would pick up the money using his phony identification. [ 12 ] The following are the transfers into the accused account in relation to this fraud [1] June 6, 13 Susan Waner $29,462.19 To Usifoh’s personal BMO account Aug 2, 12 Waner 7,985.98 Personal BMO Aug 27, 12 Waner 48,667.44 Personal BMO Dec 31, 12 Waner 29,136.00 Personal BMO Jan 15, 13 Waner 4,810.50 Personal BMO Jan 28, 13 Waner 4,451.50 Personal BMO April 4, 13 Waner 11,856.00 Personal BMO June 24, 13 Hassan $1,260.80 Western Union June 25, 13 Hassan $1,498.74 Western Union June 30, 13 Kharlas $1,350.00 Western Union June 30, 13 Segerstedt $356.80 Western Union July 1, 13 Kharlas $950.00 Western Union July 1, 13 Montanez $341.70 Western Union March 3, 14 Harry Tran $8,674.60 BMO March 6, 14 Tran $8,581.00 BMO March 25, 14 Tran $10,931.00 BMO April 1, 14 Tran $10,787.00 BMO April 14, 14 Tran $12,851.40 BMO April 15, 14 Tran $8,573.80 BMO April 15, 14 Rhea Hilyard $1,054.63 BMO May 21, 14 Darcy Gilson $50,000 US Paralegal bank account Usifoh’s evidence [ 13 ] Mr.

Usifoh is 54 years old. He came to Canada as a refugee from Nigeria in 1993 He had no documentation but was accepted as a refugee. He drove cabs and opened a bank account. He incurred numerous driving tickets and his driver’s licence was suspended. When that happened, he asked someone for “help” and they gave him phony identification using the name Oko-Oboh which was his mother’s last name. He testified that he used that phony identification solely to get another driver’s licence. This was around 2000 or 2001.

[ 14 ] Usifoh enrolled in a two year paralegal course at Humber College. He graduated in 2010 and opened his own paralegal clinic called “Altima Legal Clinic”. In the winter of 2011, while studying for his Law Society exams, he went to a restaurant and saw a group of people from Nigeria. He introduced himself and told them what he was doing. He gave them a card and solicited their business. According to the accused, it was there that he met someone known as Eddie Obijohn. [ 15 ] About three months later, he got a call from Obijohn who said he had some business to discuss. They met.

Obijohn told him he had come from Nigeria and did business all over the world via the internet. People would send Obijohn money but, since he was a refugee claimant, the bank would not let him cash the money, or might put a hold on it. Obijohn asked the accused if he had a bank account and suggested people could send money to the accused’s account. The accused replied that he wanted compensation. Obijohn offered 2%. The accused asked for 5% but Obijohn said no and they agreed on 2%. [ 16 ] The accused testified that he believed Obijohn and was not concerned about this arrangement.

He never sent anyone any emails. [ 17 ] The accused testified that, between 2012 and 2014, his commission from these deposits amounted to only $4,500.00 He was still working as a paralegal. [ 18 ] He testified that Obijohn would call him whenever monies were transferred into his account. When Obijohn called, he would go to the bank or Western Union that day or the next to get Obijohn’s money and would give it to him less his commission. He testified that sometimes he would get 2% commission, sometimes 1%, sometimes less.

Twice, monies were deposited in error into his paralegal business account without his knowledge. When Obijohn called and told him monies were deposited there, the accused told Obijohn that it should have not have been deposited into that account so the accused transferred the funds out.

Whenever Obijohn called to say deposits were made into the accused’s Western Union account in the name of Mathias Oko-Oboh, Usifoh would attend Western Union and pick up those monies. [ 19 ] When his lawyer asked him where Obijohn was, the accused said that, when he learned that his accounts were frozen and being investigated for fraud, he tried to contact Obijohn but could not find him and was told he had been deported. Cross examination [ 20 ] The accused agreed in cross-examination that he had learned about retainers and trust funds but maintained that Obijohn was not a client.

When then asked why Obijohn had monies sent to his business account, Usifoh explained that, when he first met Obijohn, he gave Obijohn his business bank account information since Obijohn said he could introduce him to people in Nigeria who would need legal services. The accused never thought monies would be sent to his business account until a retainer had been agreed upon. [ 21 ] The accused did not know where Obijohn lived and did not know what car he drove as people used to drive him around. When asked if he had his phone number, he replied that Obijohn usually called him.

He then testified that he did have his number but could not remember it as Obijohn changed his number “every time”. [ 22 ] He agreed in cross examination that it is easy to open a bank account.

He himself had opened one when he came to Canada as a refugee but testified that Obijohn told him the bank would hold onto his money for perhaps a week or six months. [ 23 ] As for his evidence that, whenever funds were deposited, Obijohn would call him and he would go to the bank that day or the next to get the money and give it to Obijohn less his commission, when the various bank records were put to him, it revealed something else.

It revealed numerous and various withdrawals, bill payments and purchases following these deposits. [ 24 ] For example, just before August 1 st , 2013, Usifoh had virtually no money in his account. He received about $14,000 from Ms. Waner. He then made a $200 MasterCard payment, a $2,500 branch withdrawal, a $2,053 transfer to another account. The next day, another $2,500 withdrawal. A few days later, a $200 abm withdrawal. Then about $2,000 in debit card purchases at Burberry, Zara Guess, Lids, Ikea, Home Living and a gas station among others.

Then three abm withdrawals totaling $1,200 and a branch withdrawal that same day for $2,000.00 followed by another $2,900 branch withdrawal. [ 25 ] By August 27, he had less than $120 in his bank. Ms. Waner transferred in another $49,000. On August 28 th , he paid $6,000.00 on his MasterCard, withdrew $3,500 from the branch, another $500 from an ABM. The following day, he withdrew another $3,000 from the branch.

A few days later, numerous debit card purchases totaling about $3,400, two $500 abm withdrawals, September 5 th , $100 from an abm September 6 th , a $2,000 branch withdrawal, a money order for $1,120, September 7 th , two branch for just under $6,000.00 and a couple of abm withdrawals. More on the 11 th , 14 th , 18 th . Then debit purchases at Zara, foot locker and Town shows over the next few days. This pattern continues after the further deposits.

Withdrawals at banks, abm, numerous store purchases, paying down his credit card, etc. [ 26 ] When cross examined on the various transactions and abm purchases Usifoh testified that he often gave Obijohn his debit card to use and told him he could use it to spend whatever belonged to him and Obijohn agreed not to take out more than was his. Usifoh felt comfortable that there was no risk. He testified that, when Obijohn was finished using the debit card, he would call Usifoh and return the card.

[ 27 ] When asked why he did not just make one trip to the bank and get a draft for the whole amount less his commission, he replied that he would do that if that is what Obijohn asked him to do. [ 28 ] In relation to one transaction on January 2, Usifoh agreed that he paid $2,000 on his credit card. He explained that if he took too much money, Obijohn told him he could re-pay it later. [ 29 ] With respect to the driver’s licence, the accused testified that he obtained the phony driver’s licence when his licence was suspended in 2001 and then forgot about it as he got his original licence back a few months later.

He was asked why he then renewed that driver’s licence in 2011. He replied that he renewed it to keep it valid in case he lost his licence again. When asked if he knew that it was a criminal offence, he replied that he has kids and bills to pay. [ 30 ] He was asked if he opened a bank account under the phony name. He did not remember. When he was then asked: “you don’t recall going into a bank with a phony identification”, he replied that he did, Records showed two separate bank accounts opened under the phony name. He was asked why did he do that if he only needed the driver’s licence to drive.

He replied that he would sometimes be out walking and would see job openings. He would apply for a job and, if he had the identification on him, he would apply under that name and would then have his income deposited into that bank account using that name. When then asked why he had two bank accounts at two different banks under that name, he replied that it depended on which bank the company used with because some companies do not want to pay transfer charges. [ 31 ] That, essentially, was the evidence. Positions of counsel [ 32 ] Mr.

Struthers submits that, based on the accused’s evidence, he did not know the fraudulent character of the funds repeatedly deposited into his account. He was not even suspicious. A conviction requires actual knowledge or willful blindness. Recklessness is not enough. And the test is not whether he ought to have known. It is whether he had actual knowledge or, having had his suspicion aroused, he refused to ask the question and was therefore willfully blind.

He says that, based on the accused’s evidence, he did not know and his suspicion was never aroused. [ 33 ] The Crown submits that the accused’s evidence is incredible. Usifoh was the recipient of the funds from this fraud and his evidence defies belief. [ 34 ] As indicated, about $200,000 of the monies obtained from this fraud were deposited into Usifoh’s accounts and then withdrawn or otherwise depleted. The accused testified that he has no idea or suspicion that they were fraudulently obtained funds. [ 35 ] If he is believed or if I have a doubt about his material evidence, he will be acquitted.

I am also aware that funds from these frauds were sent elsewhere too Findings [ 36 ] I can indicate that I completely reject the accused’s evidence and it does not leave me in any doubt. [ 37 ] His evidence that he did not know that all these funds deposited and withdrawn from his various accounts were fraudulently obtained and that he was simply allowing this alleged Mr. Obijohn to have funds deposited into his accounts which he would then turn over within a day or so less his commission is incredible. More importantly, it is belied by the records in this case.

And when faced with those contradictions, the accused’s evidence became even more incredible. [ 38 ] His evidence about Mr. Obijohn needing his assistance because banks would hold transferred funds for some vague period of time, be it a week or six months, because he is a refugee makes no sense and he would know it. There is nothing to suggest banks would put holds of one week to 6 months on monies transferred in.

Further, the accused himself knew that because he had bank accounts opened as a refugee – some even in his own name. [ 39 ] Further, while obtaining a phony driver’s licence is dishonest, I would not rely on that act of dishonesty to assist me in making findings in this case. Even opening or using a western union account with a phony name to receive these funds again, while highly suspicious, is offset by the fact that , monies were also sent to accounts in his real name. So, while these are unquestionably acts of dishonesty, they do not assist me.

However, when Usifoh was questioned about these matters, his answers undermined his credibility. First, he testified he only obtained the d/ to deal with a suspension in 200 or 2001 and then forgot about it. Thereafter of course, he used it to open the Western Union account. Further, when it was pointed out that he renewed it, he said it was renewed in case he lost his licence again. When asked if he opened bank accounts in a phony name, he said he could not remember. When challenged, he remembered. He opened two.

His reasons were patent attempts to deal with the facts we they unfolding and all his answers in this regard seriously undermined his credibility. [ 40 ] He would give any answer that came to mind when confronted with the bank records without regard to it being contradicted

by the documentary or other evidence or even his previous answers [ 41 ] His evidence about opening bank accounts in phony names was a simple example of his evolving evidence to try to deal with facts as they emerged. [ 42 ] Most importantly, his evidence about transferring the funds less his 2% commission to Obijohn the day the funds were delivered or the following day was belied by the objective facts. [ 43 ] The records of numerous withdrawals, purchases, bill payments and so on does not accord with his evidence. [ 44 ] And when then confronted with the numerous debit card purchases, he then added that Obijohn would use the debit card to get his funds [ 45 ] And Obijohn would only take what was his. [ 46 ] Who would turn over his debit card like that to someone he hardly knew and could hardly get a hold of?

He would add to or alter the arrangement depending on what fact or question was put to him. And when the accused’s bill payments seemed more than his alleged commission, he said he could repay Obijohn. [ 47 ] He was using these funds for his own purposes. I do not believe Obijohn even exists. If there were any money transferred to Obijohn, where are those records?

There is no obligation on an accused to call evidence but he did call evidence. [ 48 ] This is an inherently dishonest fraudulent scheme and Usifoh’s evidence is similarly dishonest. [ 49 ] So, as a result of the incredible story the accused tells, his inconsistencies with the objective evidence and the inconsistencies with his own evidence, I completely reject the accused’s evidence and it does not leave me with any doubt about his knowledge and his guilt. [ 50 ] He will be found guilty on all counts upon which he was arraigned. Released: June 30, 2017 Signed: “Justice H.

Borenstein” [1] Taken from a chart agreed to by the crown and defence