Okparaeke v. United States

• Court: District Court, S.D. New York
• Decided: April 24, 2023
• Docket: 7:23-cv-03353
• Status: Unknown

Opinion

USDC SDNY MEMORANDUM ENDORSMENT DOCUMENT □ ELECTRONICALLY FILED US v. Okparaeke DOC# 7:17-cr-225 (NSR) DATE FILED: 4/24/2023 7:23-cv-03353-NSR The Court is in receipt of Mr. Chukwuemeka Okparaeke Defendant's letter, dated April 19, 2023 (attached) and received by mail on April 24, 2023, purporting to be a “supplement” to a previous 28 USC § 2255 motion submitted by Defendant. On April 19, 2023, the Court received and docketed Defendant’s letter, dated April 15, 2023, which the Court construed as a motion to vacate under 28 USC § 2255 (attached). Defendant is directed to write a letter to the Court clarifying whether he seeks to replace his motion, dated April 15, 2023 (and received on April 19, 2023), with the letter motion dated April 19, 2023 (and received on April 24, 2023.), or if the latter letter merely supplements the one that was initially submitted to the Court. Defendant is directed to do so by May 4, 2023. Dated: April 24, 2023 White Plains, NY SO ORDERED: ee IN-NELCSON.S. ROMAN UNITED STATES DISTRICT JUDGE

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78867054 28 U.S.C. 2255 04/19/2023 05:11:49 PM S. Roman Quarroppas Street ite Plains, NY 10601 US v. Okparaeke, 17 Cr. 225(NSR) Judge, construe the following pursuant to 28 U.S.C. 2255. Any and all statements are made under the pains and penalties of pursuant to 28 U.S.C. 1746.

Okparaeke

moves the court to vacate Count Two of his criminal information. .

is innocent of Count Two because a controlled substance analogue cannot be an “analogue of fentanyl" as cribed in Count Two. Two of the criminal information alleged that Okparaeke violated 21 U.S.C. 960(b)(1)(F), in January and February of 201 into the United States 100 grams or more of a controlled substance analogue under 21 U.S.C. 802(32), which wa "an analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]propenamide (‘fentanyl' herein). The statute does not define phrase "analogue of ‘fentanyl but Congress did define it precisely in the accompanying legislative committee report and ed that these enhanced penalties were not applicable to controlled substance analogues. penalty provisions applicable to fentanyl analogues were amendments added to the Controlled Substances Act Anti-Drug Abuse Act of 1986. See Pub. L. No. 99-570 && 1002 (amending 21 U.S.C. 841(b)(1)), 1202 (inserting 21 U.S. ), and 1203 (inserting definition of controlled substance analogue). This omnibus legislation included a number of legislativ nges, such as the enhanced penalties for fentanyl analogues, id. at && 1201-1204. Before it was included in the House of the 1986 Act, the House Judiciary Committee approved the Narcotic Penalties and Enforcement Act of 1986, language that is substantially similar to what was ultimately enacted. The House Judiciary Committee Report that legislation explained that the term “analogue of fentanyl" refers to "a controlled substance that is an logue of fentanyl", but it "does not include fentanyl, nor does it included controlled substance analogues’. H.R. Rep. No 99- , at 17 n.2. Given the complete silence in the statute, 21 U.S.C. 960(b)(1)(F)'s use of the phrase "any analogue of ‘fentanyl to controlled substances and not to controlled substance analogues. As the Second Circuit Court of Appeals has "Because a conference report represents the final statement of terms agreed to by both houses, next to the statute itse the most persuasive evidence of congressional intent.” Railway Labor Executive Ass'n v. ICC, 735 F.2d 691, 701 (2d Cir. 4) It is clear from this report that it was Congress's intent to apply the enhanced penalties of 21 U.S.C. 960(b)(1)(F) to substances only. strict court in the Second Circuit has also examined this and determined that "analogue of ‘fentanyl only applies to substances. "Thus, the Committee's report demonstrates that when the statute was enacted, Congress considered "fentanyl analogue” to be different from the more generalized term “controlled substance analogue” even though anyl is a controlled substance. In other words, the legislative history shows that Congress considered a controlled analogue and an analogue of fentanyl to be definitionally and conceptually different." US v. McCray, 346 F. Supp. □ , 369 (2d Cir. 2018) The Seventh Circuit has also ruled that "any analogue of ‘fentanyl" and "controlled substance analogu different. "The problem for Johnson is that the term "controlled substance analogue" does not appear in [section] 841(b)(1) where the fentanyl analogue language is, and the term is treated separate and apart from "any analogue of [fentanyl]."

LEXIS 13-14 (7th Cir. 2022) Most weighty to this calculus is the Second Circuit ruling which determined that "any of ‘fentanyl” is different from "controlled substance analogue”. "But nowhere... does the term “controlled substance appear; and where that specialized term does not appear, we have no reason to apply its specialized definition." Se v. McCray, 7 F. 4th 40, 2021 U.S. App. LEXIS 12 (2d Cir. 2021) Okparaeke's plea was inherently contrary to the Second ruling in McCray because the Government alleged that "controlled substance analogue" and "analogue fentany!" were same. proper statute for prosecuting the importation of a controlled substance analogue is 21 U.S.C. 960(b)(3) not 21 U.S.C. 96( 1)(F). Under 21 U.S.C. 813, a "controlled substance analogue shall ... be treated, for the purpose of any Federal law as a substance in schedule |". The phrase “controlled substance in schedule I" is in 21 U.S.C. 960(b)(3): "In the case of □ under subsection (a) of this section involving a controlled substance in Schedule | ... the person committing such shall... be sentenced to a term of imprisonment not more than 20 years..." It is clear that Congress intended for the ortation of controlled substance analogues to be prosecuted under this statute because they used the specific phrase in 21 960(b)(3) and omitted it from 21 U.S.C. 960(b)(1)(F). “Where Congress includes particular language in one section of a ute but omits it in another section of the same Acct, it is generally presumed that Congress acts intentionally and purposely disparate inclusion or exclusion.” Russello v. US, 464 U.S. 16, 23 (1983). The Government clearly erred in this regard by a plea agreement with the wrong charge. Okparaeke is actually innocent of Count Two and could not have been guilty of committing this offense until July of 7 when the substance became a controlled substance. is actually innocent of Count Two because the plea allocution failed to establish that acrylfentanyl was a trolled substance analogue if 21 U.S.C. 960(b)(1)(F) applied to controlled substance analogues, Okparaeke would still be innocent because the failed to show that the substance in question, acrylfentanyl, was a controlled substance analogue. The governme ply stated that acrylfentanyl had “a substantially similar chemical and pharmacological effect of fentanyl.” This statement fails to establish the definition of a controlled substance analogue as set forth in 21 U.S.C. 802(32)(A). Under 21 U.S.C a controlled substance analogue is defined as a substance: chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule | or Il; has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or than the stimulant, depressant, or hallucinogenic effect on the ceniral nervous system of a controlled substance in | or If; or with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or effect on the central nervous system that is substantially similiar to or greater than the stimulant, depressant, or ucinogenic effect on the central nervous system of a controlled substance in schedule | or schedule Il. was not an iota of evidence presented to the magistrate taking the plea about the second prong or third prong of the 21 802(32)(A). No information was given about the possible stimulative, depressive or hallucinogenic effect of acrylfentam was also no indication that Okparaeke marketed acrylfentanyl consistent with the prohibitions in the third prong. Also, the ernment failed to establish any factual basis that acrylfentanyl had a chemical structure substantially similiar to a controllec stance in schedule | or fl. All they presented was a perfunctory statement about possible testimony. The Government neve any information about how the chemist came to this conclusion or whether the chemist had examined a diagram of chemicals and compared them. Without this evidence, Okparaeke is clearly innocent of the charge. fulfilling its obligation at a plea allocution to determine whether a defendant's admitted conduct is a crime, a court is "fre on any facts at its disposal," including information obtained by making an “inquiry... of the attorneys for the □□□□□□□□□□□ as "the facts relied on are placed on the record at the time of the plea." US v. Maher, 108 F.3d 1513, 1524-25 (2d Cir. Rule 41 thus "requires the court to assure itself simply that the conduct to which the defendant admits is in fact an under the statutory provision under which he is pleading guilty" such that, "were a jury to accept [those admissions] as ... a guilty verdict would follow." US v. Albarran, 943 F.3d 106, 121 (2d Cir. 2019) Therefore, Okparaeke is actually innoce Two because there was no information that acrylfentanyl was a controlled substance analogue as described in 21 .C. 802(32)(A) and no jury would have found Okparaeke guilty based on the single conclusory statement from the ernment.

plea proceeding also failed to establish another important fact: that the charged importation offense occurred in the District of New York. Venue for importation offenses is specifically controlled by Congress in 18 U.S.C. 3237, which that "any offense involving...the importation of an object... into the United States is a continuing offense and, except ¢ expressly provided by enactment of Congress, amy be inquired of and prosecuted in any district from, through, or in such...imported object move[s]." The imported object in this case, a package of acyrl fentanyl, did not move from, or into the Southern District of New York. explained during his guilty plea proceeding, while the imported substance was “supposed to be delivered to a mailbox in Middletown," a location within the SDNY, the authorities instead "did a controlled delivery. As you know probal all your experience, law enforcement will switch the substance with like a sham substance. That's what they did in my e. They had intercepted packages like at JFK and then they had done like a controlled delivery." The airport (JFK) where tt were intercepted is located in Queens County, which is within the Eastern District of New York. See 28 U.S.C. 112(« Eastern District comprises the counties of Kings, Nassau, Queens, Richmond and Suffolk") the imported package of acryl fentanyl was intercepted in the EDNY and never transferred to any address in the SDNY ere only the sham substance was delivered), the SDNY was the improper veriue for the prosecution of this offense. Okparaeke is innocent of count two because the venue for importation into the SDNY was clearly invalid.

Okparaeke asks that Count Two be vacated because he is clearly innocent. If the court disagrees Okparaeke that a certificate of appealability.

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78867054 28 U.S.C. 2255 04/15/2023 07:05:41 PM USDC SDNY DOCUMENT son S. Roman Quarroppas Street ELECTRONICALLY FILED ite Plains, NY 10601 DOC #: v. Okparaeke, 17 Cr. 225(NSR) DATE FILED: _ 4/19/2023 _ Judge, ase construe the following pursuant to 28 U.S.C. 2255. Any and all statements are made under the pains and penalties of pursuant to 28 U.S.C. 1746. ae, a f° oe, 2b? & Bee eke GEES ide □□□ Okparaeke ee | ay oduction mM | APR 19 ua | □□□ moves the court to vacate Count Two of his criminal information. NELSON S. ROMAN . U.S. DISTRICT JUDGE ON is innocent of Count Two because a controlled substance analogue cannot be an “analogue of fentanyl" as in Count Two. Two of the criminal information alleged that Okparaeke, in January and February of 2017, imported into the United Stat grams or more of a controlled substance analogue under 21 U.S.C. 802(32), which was also “an analogue of N-phenyl-N 2-phenylethy!)-4-piperidinyljpropenamide (‘fentanyl' herein). The statute does not define the phrase "analogue of □□□□□□□□□ Congress did define it precisely in the accompanying legislative committee report and stated that it excluded □□□□□□□□□□ analogues. The enhanced penalty provisions applicable to fentanyl analogues were amendments added to the Substances Act in the Anti-Drug Abuse Act of 1986. See Pub. L. No. 99-570 && 1002 (amending 21 U.S.C. 841(b) 1202 (inserting 21 U.S.C. 813), and 1203 (inserting definition of controlled substance analogue). This omnibus legislation uded a number of legislative changes, such as the enhanced penalties for fentanyl analogues, id. at && 1201-1204, it was included in the House version of the 1986 Act, the House Judiciary Committee approved the Narcotic Penalties Enforcement Act of 1986, containing language that is substantially sirnilar to what was ultimately enacted. The House Committee Report accompanying that legislation explained that the term "analogue of fentanyl" refers to "a □□□□□□□□□□ that is an analogue of fentanyl", but it "does not include fentanyl, nor does it included controlled substance H.R. Rep. No 99-845, at 17 n.2. Given the complete silence in the statute the court has to define 21 U.S.C. 960(b) use of the phrase "any analogue of ‘fentanyl as only inclusive of controlled substances. As the Second Circuit Court has stated, “Because a conference report represents the final statement of terms agreed to by both houses, next to tt itself it is the most persuasive evidence of congressional intent." Railway Labor Executive Ass'n v. ICC, 735 F.2d 691, (2d Cir. 1984) istrict court in the Second Circuit has also examined this and determined that "analogue of ‘fentanyl only applies to substances. "Thus, the Committee's report demonstrates that when the statute was enacted, Congress considered term "fentanyl analogue" to be different from the more generalized term "controlled substance analogue" even though is a controlled substance. In other words, the legislative history shows that Congress considered a controlled analogue and an analogue of fentanyl to be definitionally and conceptually different.” US v. McCray, 346 F. Supp. □ 369 (2d Cir. 2018) The Seventh Circuit has determined that "any analogue of 'fentanyl" and "controlled substance are different. "The problem for Johnson is that the term “controlled substance analogue" does not appear in [sectior where the fentanyl analogue language is, and the term is treated separate and apart from "any analogue of Congress specifically used the term "controlled substance analogue" in other sections of the statute, see 841(b)(7) Thus, “controlled substance analogue" is not the same as "any analogue of [fentanyl]." US v. Johnson, 47, F.4th 535, Ann | EXIS 12.44 (7th Cir 390773 Moet woichtyv to thie calculus ie the Second Circuit ruling which determined that

12 (2d Cir. 2021) proper statute for prosecuting the importation of a controlled substance analogue is 21 U.S.C. 960(b)(3) not 21 U.S.C. 96( Under 21 U.S.C. 813, a "controlled substance analogue shall ... be treated, for the purpose of any Federal law as a substance in schedule |". The phrase "controlled substance in schedule |" is in 21 U.S.C. 960(b)(3): "In the case of ¢ ation under subsection (a) of this section involving a controlled substance in Schedule | ... the person committing such ation shall... be sentenced to a term of imprisonment not more than 20 years..." It is clear that Congress intended for the of controlled substance analogues to be prosecuted under this statute because they used the specific phrase in 2’ 960(b)(3) and omitted it from 21 U.S.C. 960(b)(1)(F). "Where Congress includes particular language in one section of é but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely disparate inclusion or exclusion." Russello v. US, 464 U.S. 16, 23 (1983). The Government clearly erred in this regard. Okparaeke is actually innocent of Count Two and could not have been guilty of committing this offense until July of when the substance became a controlled substance. is actually innocent of Count Two because the plea allocution failed to establish that acrylfentanyl was a substance analogue if 21 U.S.C. 960(b)(1)(F) applied to controlled substance analogues, Okparaeke would still be innocent because the failed completely to show that the substance in question, acrylfentanyl, was a controlled substance analogue. Th: simply stated that acrylfentanyl had "a substantially similar chemical and pharmacological effect of fentanyl." This clearly fails to establish the definition of a controlled substance analogue as set forth in 21 U.S.C. 802(32)(A). Unde U.S.C. 802(32)(A), a controlled substance analogue is defined as a substance: chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule | or Il; which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in | or Il; or (rest omitted) was not an iota of evidence presented to the magistrate taking the plea about the second prong of the 21 U.S.C. 802(3: . No information was given about the possible stimulative, depressive or hallucinogenic effect of acrylfentanyl. Without this dence there is no evidence of Okparaeke's guilt. Okparaeke is actually innocent of Count Two because there was no information that acrylfentanyl was a controlled analogue as described in 21 U.S.C. 802(32)(A). is actually innocent of Count Two because the plea allocution failed to establish that the SDNY was the proper

plea proceeding also failed to establish another important fact: that the charged importation offense occurred in the uthern District of New York. Venue for importation offenses is specifically controlled by Congress in 18 U.S.C. 3237, which that “any offense involving...the importation of an object... into the United States is a continuing offense and, except : expressly provided by enactment of Congress, amy be inquired of and prosecuted in any district from, through, or it ich such...imported object move[s]." The imported object in this case, a package of acyrl fentanyl, did not move from, or into the Southern District of New York. Okparaeke explained during his guilty plea proceeding, while the imported substance was "supposed to be delivered to a mailbox in Middletown," a location within the SDNY, the authorities instead "did a controlled delivery. As you know proba all your experience, law enforcement will switch the substance with like a sham substance. That's what they did in my They had intercepted packages like at JFK and then they had done like a controlled delivery." The airport (JFK) where t were intercepted is located in Queens County, which is within the Eastern District of New York. See 28 U.S.C. 112( Eastern District comprises the counties of Kings, Nassau, Queens, Richmond and Suffolk") the imported package of acryl fentanyl was intercepted in the EDNY and never transferred to any address in the SDNY only the sham substance was delivered), the SDNY was the improper venue for the prosecution of this offense. erefore Okparaeke is innocent of count two because the venue for importation into the SDNY was clearly invalid.

ULINCS 78867054 - OKPARAEKE, CHUKWUEMEKA - Unit: CAA-G-A

Okparaeke asks that Count Two be vacated because he is clearly legally innocent. If the court disagrees requests that a certificate of appealability be issued.

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