You may have seen a recent video showing how the current Senior Assistant to former Nigerian President Olusegun Obasanjo Mr. Eke Agbai, who later transformed into Dr. Agbai Eke Agbai, was ostracised by his community, Abiriba, in the Ohafia Local Government Area of Abia State.
A civilised mind might wonder, “In this modern age, how can this happen?” The reality is that, in certain circumstances, within communities that staunchly uphold their traditional institutions and cultures, such actions can become necessary to rein in individuals whose behaviour is deemed harmful.
The trouble began when Mr. Eke Agbai now Dr. Agbai Eke Agbai, was elected president of the town’s union, ACIU. To summarise, after completing his term, he refused to relinquish the community documents in his possession. Over the years, prominent members of society made repeated pleas for him to do so, all of which fell on deaf ears. Instead, he sent a voicemail to one of the community’s WhatsApp groups, stating that only President Obasanjo and his wife could compel him to return them.
Consistently boasting about his connections to President Obasanjo, Eke Agbai lodged a petition with the DSS against the royal leader of his community, labelling him a member of IPOB involved in the kidnapping and murder of Nigerian police officers. When some community members stepped in to caution him, he retaliated by filing another petition against them, levelling the same accusations.
When all attempts to bring him to heel failed, the three village heads constituting the EnachioKen-in-Council decided, in accordance with tradition, to ostracise him from the community. This led to the video being shared, showing the disposal of refuse at his villa.
By employing the police to intimidate everyone and repeatedly boasting about how the former president attended his mother’s funeral—his most notable contribution to the Abiriba community—Mr. Eke Agbai has compelled his fellow community members to reveal his true character to the world.
His late elder brother was a well-known medical doctor named Dr. Agbai Eke Agbai. Mr. Eke Agbai hastily adopted this name upon returning home, and initially, no one questioned it until subsequent events unfolded. His real name is Eke Agbai. Understanding this contradiction requires an appreciation of Abiriba culture.
The Abiriba people of Ohafia LG in Abia State are commonly referred to as “Nde Ogbo,” which signifies namesakes. A man names his first son after his father and his first daughter after his mother.
This context clarifies why the individual currently presenting himself as Agbai Eke Agbai cannot hold that name, as he is not the firstborn son. The grandfather was named Agbai, and following tradition, the father Eke named his first son, the now-deceased Agbai Eke Agbai. Eke Agbai is the second son.
The truth behind this name swap involves Eke Agbai being indicted for two charges of bank fraud (counts I and II) and for the fraudulent use of a Social Security Number (count III). While on bail after his arraignment, he failed to appear at a district court hearing because he fled to London, England. He was arrested several months later while attempting to re-enter the United States in New York City. A charge of failure to appear (count IV) was subsequently added via superseding indictment.
Mr. Agbai entered a plea agreement, pleading guilty to counts I, III, and IV. He received concurrent ten-month prison sentences for counts I and III, and a consecutive twelve-month term for count IV, followed by three years of supervised release. On appeal, he contested the legality of his sentence for count IV under the United States Sentencing Commission Guidelines Manual, § 2J1.6 (Nov. 1989). We affirm.
According to the appeal record and the parties’ briefs, these charges stemmed from Mr. Eke Agbai’s use of false identification, including a Social Security Number not assigned to him, to open bank accounts. Deposits were made to these accounts with checks from other closed or fake accounts or with stolen money orders, followed by immediate withdrawals of cash or procurement of cashier’s cheques.
After reviewing the briefs and the appellate record, this panel determined unanimously that oral argument would not significantly assist in resolving this appeal. See Fed. R. App. P. 43(a); 10th Cir. R. 34.1.9. The case is therefore submitted without oral argument.
Mr. Eke Agbai faced charges under count IV pursuant to 18 U.S.C. § 3146(a)(1)(1988) and was sentenced under U.S.S.G. § 211.6 in accordance with 18 U.S.C. § 3146(b)(1)(B). The sentencing framework for failure to appear is based on the maximum penalty for the underlying charge that the defendant sought to evade.
In Mr. Eke Agbai’s case, the maximum sentence for counts I and III was five years, but his actual sentence was two concurrent ten-month terms. Mr. Eke Agbai submits that this lack of correspondence between the maximum possible sentence and the actual sentence received renders section 2J1.6 unlawful for two reasons. First, he argues that it fails to comply with 18 U.S.C. 3553, which requires courts to consider the nature and circumstance of the offense. See United States v. Lee, 887 F.2d 888,890 (8th Cir. 1989). And second, he argues that section 2J1.6 violates the requirements of the defendant’s conduct be considered, promoting not only certainty but also fairness. Id.+ U.S. V. AGBAI
The case is therefore ordered submitted without oral argument.
Mr. Eke Agbai was charged with count IV pursuant to 18 U.S.C. § 3146(a)(1)(1988),* and sentenced under U.S.S.G. § 2J1.6 pursuant to 18 U.S.C. § 3146(b)(1)(B). Under these provisions, the sentencing formula for failure to appear is based on the maximum penalty for the underlying charge which the defendant attempted to evade. In Mr. Agbai’s case, the maximum sentence for counts I and III was five years, but his actual sentence was two concurrent ten-month terms. Mr. Agbai submits that this lack of correspondence between the maximum possible sentence and the actual sentence received renders section 2J1.6 unlawful for two reasons.
First, he argues that it fails to comply with 18 U.S.C. § 3553, which requires courts to consider the nature and circumstances of the offense and impose a sentence consistent with the seriousness of the offense. See United States v. Lee, 887 F.2d 888, 890 (8th Cir. 1989). And second, he argues that section 2J1.6 violates the requirement of 28 U.S.C. § 994 that all mitigating and aggravating circumstances of the defendant’s conduct be considered, promoting not only certainty but also fairness. Id.18 U.S.C. § 3146(a)(1) provides in pertinent part: “Penalty for failure to appear (a) Offense. -A person commits an offense if, after having been released pursuant to this chapter -(1) he knowingly fails to appear before a court as required by the conditions of his release.”
18 U.S.C. § 3146(b)(1) provides in pertinent part:
(b) Grading. – If the person was released —
(1) in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction, for —
(B) an offense punishable by imprisonment for a term of five or more years, but less than fifteen years, he shall be imprisoned for not more than five years.
We review the district court’s legal interpretation of the guidelines de novo. See United States v. Florentino, 922 F. 2d 1443, 1445 (10th Cir. 1990) (citing United States v. Roberts, 898 F.2d 1465, 1469 (10th Cir. 1990)). Because the sentencing guidelines are the United States Sentencing Commission’s application of statutory directives, 1449 we review this challenge to a specific guideline to determine whether it is “sufficiently reason-able” in light of the statute. Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39, 102 S.Ct. 38, 46, 70 L.Ed.2d 23 (1981). “Furthermore, the Guidelines should be interpreted as if they were a statute or court rule; therefore, we follow the clear, unambiguous language of the guidelines unless there is a manifestation of contrary intent.” Florentino, 922 F.2d at 1446.
The issue and the arguments presented by Mr. Agbai in this case have previously been considered and rejected by the Ninth Circuit. In United States v. Nelson, 919 F.2d 1381 (9th Cir. 1990), the defendant failed to appear at two hearings prior to trial, and a superseding indictment charging failure to appear in violation of 18 U.S.C. § 3146 was returned. At the jury trial, the defendant was acquitted of the underlying charges and pleaded guilty to the charge of failure to appear. Id. at 1382. The district court judge sentenced the defendant to thirty-six months, pursuant to U.S.S.G. § 2J1.6, with appropriate modification for criminal history and acceptance of responsibility. Id. The Ninth Circuit upheld the sentence on three grounds. First,
The failure to appear to answer more serious crimes could be seen as a greater offense than when one is initially charged with less serious crimes. One facing a potentially longer prison term has more of an incentive to flee, and thus a longer sentence could be seen as necessary to deter him. The deterrent effect is one of the purposes of sentencing that the Commission and sentencing court are to consider.
Id. at 1384 (citing 28 U.S.C. § 991(b)(1)(A), 994(c)(6); 18 U.S.C. § 3553(a)(2)(B)). Second, since Mr. Nelson’s acquittal of the underlying charges occurred after his failure to appear, the acquittal could not have been a mitigating factor affecting his conduct with respect to his crime of failure to appear. Id. And third, section 2J1.6 “can be said to reflect the Commission’s proper consideration of the community view of the gravity of the offense and the public concern generated by the offense.” Id. (citing 28 U.S.C. § 994(c) (4), (5)).
Mr. Agbai urges us to apply the holding of United States v. Lee, 887 F.2d 888 (8th Cir. 1989). However, we note, as did the Ninth Circuit in Nelson, 919 F.2d at 1383-84, the explicit distinction between the case of pre sentencing failure to appear and that reviewed by the Eighth Circuit in Lee. In Lee, the defendant failed to report after she had been sentenced, and the court found that in the circumstance of post-sentencing failure to report when the sentence for the underlying offense is but a fraction of the maximum, the court should sentence for the failure to report as if there were not guidelines applicable for this offense. Lee, 887 F.2d at 892. The court ruled that application of section 2J1.6 was invalid “insofar as it deals with a defendant’s failure to appear after a sentence has been imposed that is but a fraction of the maximum.” Id. (emphasis added). However, the Eighth Circuit itself distinguished its holding from cases such as ours:
The defendant who fails to appear pending trial, appeal, or sentencing has no knowledge of what sentence he will ultimately face for the underlying offense. In such a circumstance, the possibility remains that the defendant will be sentenced to serve the statutory maximum sentence for the underlying offense.
Id. at 891. Thus, the court’s ruling in Lee, does not assist Mr. Agbai, who failed to appear prior to trial.
As to Mr. Agbai’s argument that section 2J1.6 deprives the sentencing court of consideration of mitigating circumstances, in United States v. Savage, 888 F.2d 528 (7th Cir. 1989), cert. denied, — U.S., 110 S.Ct. 2567, 109 L.Ed.2d 750 (1990), the court disagreed with a similar proposition, noting that under Policy Statement 4(b) [U.S.S.G. Pt. A.4(b) (1989)], the only circumstance in which a particular mitigating factor will not be considered is when the Commission expressly forecloses that particular factor from being a basis of departure. Section 2J1.6 contains no such *1450 prohibition. Savage, 888 F.2d at 529. The court also noted that if the defendant’s appeal were in actuality a complaint that the district court had denied a discretionary downward departure, the circuit court would not have jurisdiction over such appeal, citing United States v. Franz, 886 F.2d 973 (7th Cir. 1989). Id. at 530; accord United States v. Davis, 900 F.2d 1524, 1529-30 (10th Cir.), cert. denied, – U.S. _ 111 S.Ct. 155, 112 L.Ed.2d 121 (1990); cf. Franz, 886 F.2d at 981 (court is not required to depart in every situation in which it is allowed to do so).
We agree with the holding of the Ninth Circuit for the reasons outlined in Nelson, 919 F.2d at 1384. There is a direct relationship between the length of the potential sentence which one who fails to appear attempts to evade and the seriousness of the evasion. A correspondence between a sentence for the offense of failure to appear and the seriousness of the charge for which the defendant failed to appear is logical and compelling, and thus does not violate the restraints of 18 U.S.C. § 3553. The sentence ordered for a defendant’s underlying offense(s) is not an aggravating or mitigating circumstance for his or her crime of failure to appear, so that reliance on 28 U.S.C. § 994 is misplaced. And, section 2J1.6 responds to the community view of the seriousness of this affront to the court and waste of government and judicial resources, as well as public concern generated by the failure of defendants to appear in court.
The judgment of the United States District Court for the District of Colorado is AFFIRMED.
That was how Mr. Eke Agbai, a convicted felon in the USA, hastily returned to Nigeria after his parole to adopt the name Dr. Agbai Eke Agbai following the assassination of his elder brother, a crime that remains unsolved to this day. He began enrolling in educational courses to cleverly consolidate the two different names. Outsiders may not discern the distinction between Agbai Eke Agbai, his late brother’s name, and his true name, Eke Agbai Agbai. To the members of the Abiriba community, the difference is as significant as the distance between Mecca and Jerusalem.
This is the character of an individual who, hiding behind the shadow of former President Obasanjo, has been traversing the African continent as an election observer—a fact he often boasts about to entice some of our community’s youth for support. He promises them $15,000 USD as compensation for their roles in election monitoring, parading a photo with the newly elected president of Ghana as evidence, a picture taken under the influence of President Obasanjo.
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