United States v. Nana Agyemang, Also Known as James Amabuto, Also Known as Nanda Alapati

876 F.2d 1264
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 26, 1989
Docket88-2577
StatusPublished
Cited by69 cases

This text of 876 F.2d 1264 (United States v. Nana Agyemang, Also Known as James Amabuto, Also Known as Nanda Alapati) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Nana Agyemang, Also Known as James Amabuto, Also Known as Nanda Alapati, 876 F.2d 1264 (7th Cir. 1989).

Opinions

MANION, Circuit Judge.

Nana Agyemang pleaded guilty to two counts of bank fraud, 18 U.S.C. § 1344. Agyemang appeals his sentence, protesting the procedure the district court used at the sentencing hearing, the court’s reliance on hearsay information, and the adequacy of the information to support certain assertions in the presentence report that he challenged. Agyemang also contends that the district court should have sentenced him under the Sentencing Guidelines (which the district court previously had found unconstitutional) rather than under pre-Guideline law. We reject Agyemang’s arguments concerning his sentencing hearing and the information upon which the district court based sentence but we vacate his sentence and remand for resentencing under the Guidelines.

I.

In early June 1988, Nana Agyemang was facing trial on two indictments charging a total of seven counts. The first indictment alleged that in January 1987 Agyemang, using the alias James C. Amabuto, opened checking accounts at the Valley and M & I Banks of Madison, Wisconsin. “Amabuto” deposited checks into those accounts that were drawn on accounts that he knew contained insufficient funds to cover the checks. During January and February 1987, Amabuto allegedly withdrew $4,900 from the Valley Bank and $3,354.70 from the M & I Bank, causing overdrafts in those amounts in his accounts. (We shall refer to this indictment, and the conduct it alleges, as the “Amabuto indictment” or “Amabuto scheme”).

The second indictment alleged that in late December 1987 Agyemang, using the alias Nanda Alapati, opened checking accounts at the Valley Bank of Shorewood Hills and the M & I Bank of Hilldale (both in Madison). As in the Amabuto scheme, “Alapati” deposited checks in those accounts drawn on accounts containing insufficient funds to cover the checks. During January 1988, “Alapati” withdrew $4,314.17 from the Valley Bank and $4,195.00 from the M & I Bank, causing overdrafts in those amounts in his accounts. (We shall refer to this indictment, and the conduct it alleged, as the “Alapati indictment” or the “Alapati scheme”).

Agyemang’s trial on the two indictments was set for June 13, 1988. After negotiations with the government, Agyemang pleaded guilty to a superseding information that charged two counts of bank fraud, 18 U.S.C. § 1344. These counts alleged modified versions of the bank fraud scheme alleged in the Alapati indictment. According to the information, Agyemang, as Ala-pati, cashed two checks totaling $2,340 at the Valley Bank of Shorewood Hills and withdrew a total of $2,595 from Alapati’s savings account at the M & I Bank of Hilldale.

At the time Agyemang pleaded guilty, he was also facing trial in Wisconsin state court on state bad check charges that arose from a series of bad checks that Agyemang had allegedly drawn on the Alapati account and passed to merchants in Dane and Rock Counties in Wisconsin. The state agreed to dismiss those charges when Agyemang pleaded guilty to the federal charges. In exchange for the state’s dropping the bad check charges, Agyemang agreed that an Assistant Dane County District Attorney (the “state prosecutor”) could write a letter to the court setting out sentencing argu[1267]*1267ments and recommendations and petitioning the court for restitution for the merchants. Agyemang’s guilty plea also provided that he would pay $16,763.87 in restitution to the banks defrauded by the Alapa-ti and Amabuto schemes (although he pleaded guilty to bank fraud counts alleging a total loss of around $5,000) and that the government would dismiss the Alapati and Amabuto indictments.

At Agyemang’s guilty plea hearing on June 9, Judge Shabaz ordered that the pre-sentence report be made available to Agye-mang by July 15. Judge Shabaz ordered that Agyemang make any challenges to the report by July 25 and that the government respond by August 4, the date set for sentencing.

Agyemang’s counsel wrote a letter to the court detailing his challenges to the presen-tence report. The letter made four specific challenges. Agyemang first challenged paragraph 17 of the report, which asserted that he withdrew an additional $1,650 in cash from the Valley Bank of Shorewood Hills on January 21, 1988 as part of the Alapati scheme. Second, Agyemang challenged paragraph 19, which asserted that he was involved in the Amabuto scheme. Third, Agyemang challenged paragraph 31, which recommended increasing the applicable offense level under the Guidelines by three because his crimes resulted in a loss of $10-20,000. Finally, Agyemang challenged paragraph 32, which recommended that the offense level be increased by two because his crimes involved “more than minimal planning.” The letter also incorporated by reference an earlier letter counsel had written to the probation officer. That letter outlined the evidence that counsel would have presented at trial to rebut Agyemang’s involvement in any broad bank fraud scheme, and also included a letter from a handwriting analyst that concluded that Agyemang had not written certain unspecified samples.

The government responded to Agye-mang’s challenges by writing a letter to Judge Shabaz and Agyemang’s counsel. The letter outlined the government’s position regarding Agyemang’s challenges. The letter also specifically stated that the government expected “to rebut [Agye-mang’s] challenges and arguments at the sentencing hearing,” and urged Judge Sha-baz to consider the disputed information in the presentence report in sentencing Agye-mang.

At the sentencing hearing, Judge Shabaz offered Agyemang the chance to make additional challenges to the presentence report and asked Agyemang’s counsel if he wished to present any evidence to support his challenges. Counsel stated that he did not intend to present anything beyond the materials he had already submitted. Judge Shabaz then asked the Assistant United States Attorney whether the government had any evidence to present; the AUSA replied that the government did. Agye-mang’s counsel objected to the government’s evidence because he had not received any notice that the government was going to present evidence. Judge Shabaz overruled the objection.

The government’s first witness was FBI agent Thomas Marquardt. Marquardt testified that in January 1987 he had spoken to a man who identified himself as Nana Agyemang. Marquardt identified Agye-mang in court as the man he had spoken to. The government then called employees of three different merchants in Madison and Janesville, Wisconsin, who identified Agye-mang as the man who had purchased merchandise from them with checks drawn on Alapati’s account.

The government’s final witness was Brian Kobinsky, the FBI agent who had investigated the Alapati and Amabuto schemes. Kobinsky’s testimony essentially summarized the information he had gathered during his investigations. Agyemang objected to much of Kobinsky’s testimony as hearsay; the district court overruled those objections.

During his investigation, Kobinsky had obtained bank photographs of transactions by both “Alapati” and “Amabuto.” Those pictures were taken about one year apart. The pictures all show a black, bearded male (Agyemang is black and had a full beard) wearing what appears to be an identical [1268]*1268overcoat. The government introduced these pictures into evidence during Kobin-sky’s testimony.

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Bluebook (online)
876 F.2d 1264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nana-agyemang-also-known-as-james-amabuto-also-known-as-ca7-1989.