UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Emmanuel Akoto, Petitioner

v. Case No. 24-cv-47-SM-TSM Opinion No.

The United States of America, Respondent

O R D E R

A federal grand jury indicted petitioner, Emmanuel Akoto,

charging him with three counts of wire fraud, one count of

conspiracy to commit wire fraud, and two counts of aggravated

identity theft – all stemming from his participation in an

international scheme to use stolen personal identifying

information to file fraudulent tax returns with the Internal

Revenue Service. Prior to trial, Akoto received, but rejected,

three plea offers from the government. At trial, he testified

in his own defense. He was convicted on all counts and

sentenced to serve a term of 70 months in prison based upon the

court’s determination that he and his coconspirators had filed

at least 310 fraudulent tax returns, with an intended loss of

more than $1.3 million. His convictions and sentence were affirmed on appeal. United States v. Akoto,

(1st

Cir. 2023). 1

Akoto now seeks relief pursuant to

,

asserting that he was provided ineffective assistance of counsel

during pre-trial plea negotiations, throughout the course of

trial, and at sentencing. The government objects. For the

reasons discussed, Akoto’s petition is denied.

Standard of Review

“To succeed with an ineffective assistance of counsel claim

under

, a petitioner must show both that his

counsel’s representation fell below an objective standard of

reasonableness (the performance prong) and that there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different

(the prejudice prong).” Casey v. United States,

,

42–43 (1st Cir. 2024) (citation and internal punctuation

omitted).

1 Akoto’s 70-month sentence breaks down as follows: 46 months for each of the four wire fraud counts, to be served concurrently, and 24 additional months for each of the two aggravated identity thefts counts, to be served concurrently with each other but consecutive to the wire fraud counts.

2 To carry his burden on the “performance prong” of the

analysis, petitioner must demonstrate that “given the facts

known at the time, counsel’s choice [of trial strategy] was so

patently unreasonable that no competent attorney would have made

it.” Tevlin v. Spencer,

(1st Cir. 2010). In

determining whether petitioner has met that burden, the court

must “strongly presume” that the attorney “rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Strickland v. Washington,

(1984). With respect to the “prejudice

prong,” petitioner must show a “reasonable probability” that,

but for counsel’s errors, the result of the trial would have

been different - that is, his showing must be “sufficient to

undermine confidence” in the verdict.

. “The

petitioner bears a heavy burden on each prong.” Casey, 100

F.4th at 43.

Finally, as to his claims asserting deficient performance

during plea negotiations, “the prejudice prong requires

[petitioner] to prove that the outcome of the plea process would

have been different with competent advice. That is,

[petitioner] must demonstrate a reasonable probability [he]

would have accepted a lower plea offer and that the plea would

have been entered without the prosecution canceling the offer or

3 the trial court refusing to accept it.” Torres-Estrada v.

United States,

, 494 (1st Cir. 2024) (citations and

internal punctuation omitted).

Discussion

I. Plea Negotiations.

Akoto asserts that on September 17, 2019, the government

extended a plea offer pursuant to which Akoto would plead guilty

to a single count of wire fraud. Later that day, says Akoto,

“my lawyer forwarded me the government’s email with a message

that said ‘Please see below email from the government regarding

their offers for you to plead guilty, which we have already

discussed. Please let me know if you have any additional

questions regarding these. My intention is to advise the

government that you do not wish to accept an offer to plead

guilty.’” Petition (document no. 1) at 5 (emphasis supplied).

But, says Akoto, “my lawyer never explained this offer and what

it meant to me. . . . Specifically, I did not understand that

if I was convicted at trial, 24 months would be added

automatically to my sentence because of the aggravated identity

theft charges. If I had understood that risk, I would have

accepted the government’s offer to avoid the risk of two extra

years being added onto my sentence”

4 What Akoto neglects to mention is that prior to trial, the

government extended three plea offers, only the last of which he

claims was inadequately explained. First, in early August, the

government offered a plea to one count of wire fraud and one

count of aggravated identity theft (the latter of which would

carry a mandatory 24-month sentence consecutive to any sentence

for wire fraud). Akoto rejected the deal and his attorney

informed the government that, “The defendant is intent on going

to trial.” Email from Defense Counsel dated August 15, 2019

(document no. 5-1) at 3. Four days later, the government

offered Akoto the opportunity to plead guilty to a single count

of wire fraud. Defense counsel responded, saying “I spoke with

Mr. Akoto and he wants to talk it over with his wife, who is at

work right now. Is getting back to you tomorrow okay?” Id. at

9. On August 23, defense counsel followed up by notifying the

government that, “It seems we’re going to trial. I thank you

for your efforts to resolve the case.” Id. at 11. Finally, on

September 17, 2019, the government summarized the offers

previously extended to Akoto and once again offered him the

opportunity to plead guilty to a single count of wire fraud (the

same offer extended in August that Akoto needed time to consider

and discuss with his wife).

Now that we have a date certain for the trial, I would like to (1) make sure we are on the same page

5 regarding plea offers and possible plea offers that have been made, and (2) see if there is any chance of resolving this matter with a plea before I cancel my plans to be out of the state during the week trial is now scheduled.

We initially made a formal offer to allow Mr. Akoto to plead guilty to two counts, one being wire fraud and the other being aggravated identity theft. A conviction on the latter count would require a mandatory minimum 24 month sentence consecutive to the guideline sentence imposed on the former count. You advised us that Mr. Akoto rejected that offer.

We later told you that we would be willing to make an offer for Mr. Akoto to plead guilty to only the wire fraud count. We asked you to confer with your client to see if he would accept such an offer, and you advised us that he would not.

We now have a date certain for trial with jury selection on Wednesday, October 16, 2019 and trial beginning on Monday, October 21, 2019. So there will be no misunderstanding, although Mr. Akoto has rejected our offers, we will allow Mr. Akoto to plead guilty to the wire fraud count only, but only if he agrees to that at or before 5:00 pm EST, 2:00 pm PST, Friday, September 27, 2019.

Email dated September 17, 2019, from Prosecuting Attorney to

Defense Counsel (document no. 5-1) at 14-15.

Independent of any advice that defense counsel provided to

Akoto, that email alone clearly explains that the government’s

most recent plea offer, if accepted, would allow Akoto to avoid

the 24-month mandatory sentence associated with a conviction for

aggravated identity theft. And Akoto acknowledges that defense

counsel forwarded a copy of that email to him. See Petition at

6 5 (stating that counsel advised Akoto to “please see email below

from the government regarding their offers for you to plead

guilty.”) (emphasis supplied). Defense counsel responded to the

government, saying “Thanks for this email. I’ll be responding

to it after I consult again with my client.” Email dated

September 17, 2019, from Defense Counsel to Prosecuting Attorney

(document no. 5-1) at 14 (emphasis supplied). It is that

September plea offer that Akoto claims was inadequately

explained to him.

Absent from Akoto’s petition is any mention of the fact

that he received an identical plea offer from the government a

month earlier; he discussed that plea offer with his attorney;

he asked for additional time so he might consider it and speak

with his wife about it; and, having done so, he then rejected

it. There is no suggestion that he failed to understand the

consequences of rejecting that (earlier, but identical) plea

offer or that his attorney failed to explain the consequences of

doing so to him. And, the government’s email of September 17,

2019, clearly referenced the consequences of rejecting the plea

offer (including the mandatory 24-month consecutive sentence for

aggravated identify theft if convicted).

7 Given the record evidence, Akoto cannot bear the heavy

burden of demonstrating that he would have accepted the

government’s third (identical) plea offer if only his counsel

had better explained the details to him. See Torres-Estrada,

122 F.4th at 494. Moreover, as the government points out,

given that Akoto rejected two prior plea offers, testified in

his own defense, and his attorney told prosecutors that he was

“intent on going to trial,” his “apparent insistence on his

innocence belies any notion that he would have pled guilty.”

Alaniz v. United States, No. 5:10-CR-1420-2,

,

at *7 (S.D. Tex. Jan. 25, 2015).

II. The Trial.

Next, Akoto claims that defense counsel provided

constitutionally deficient representation during the course of

trial. First, Akoto generally claims that his attorney was

poorly prepared, distracted, and actually fell asleep during

trial. That latter claim appears to arise out of an exchange

between the court and counsel during the second day of trial.

In response to questions from the court, defense counsel

apologized to the court for being “a little bit spacey” at the

moment and explained that he hadn’t slept well the night before

because he was worried about a family matter. See Trial

Transcript, Day Two, Afternoon Session (document no. 118) at

8 page 43, ln. 13-25; page 45, ln. 23 - page 46, ln. 7. Nothing

in the record suggests counsel fell asleep, nor does the court

recall that happening. Perhaps more importantly, and despite

Akoto’s conclusory claims to the contrary, there is no

suggestion that counsel’s disturbed sleep the night before day

two of the trial adversely affected his performance in any way.

Taken as a whole, defense counsel presented a plausible,

coherent, and competent defense – a particularly challenging

endeavor given the extraordinary weight of the documentary and

testimonial evidence against Akoto (which included, among other

things, testimony from one of Akoto’s co-conspirators).

Next, Akoto claims he was prejudiced by defense counsel’s

failure to raise a statute of limitations defense as to one of

the aggravated identify theft charges (count five). That claim

lacks merit. The indictment was timely on its face.

Akoto was indicted on November 29, 2017. Counts five and

six charge that he committed identity theft from “at least as

early as November 2011” and through “at least as late as March

13, 2013.” But, says Akoto, the aggravated identify theft crime

charged in count five of the indictment actually occurred on

November 20, 2012, the date on which the fraudulent tax return

associated with that count was filed. Consequently, he believes

9 the indictment was handed down more than five years after the

crime – that is, from November 20, 2012 to November 29, 2017 -

and, therefore, beyond the five-year limitations period.

Although the Court of Appeals did not resolve Akoto’s

ineffective assistance/statute of limitations claim on appeal,

it did make the following observations:

The government argues that Count Five was timely for three reasons: First, the charging language in the indictment expressly alleged that the offense continued “at least as late as March 13, 2013,” and the inclusion of the earlier date on which the tax return was filed should not override this charging language.

Second, Count Five was timely as a continuing offense: aggravated identity theft requires the commission of a predicate felony, the statute of limitations does not begin to run until the predicate felony is completed, and the predicate felony here - the conspiracy to commit wire fraud - lasted well into the statute of limitations period.

Third, Count Five was timely as proven at trial because the refund associated with the false tax return was not issued until December 5, 2012, within the statute of limitations period, and because Akoto continued to “possess” the stolen identity information in his email account within this period.

United States v. Akoto, 61 F.4th at 41. Without expressly

rejecting Akoto’s claim, the court concluded by observing that,

“It is by no means clear, for reasons articulated by the

10 government, that a statute of limitations defense was obviously

available to Akoto in this case.” Id. at 42.

Because the indictment was timely on its face and, as noted

by the appellate court, because no statute of limitations

defense was “obviously available,” counsel’s decision not to

raise such a defense is not subject to attack as having been

constitutionally deficient. See generally Prou v. United

States,

(1st Cir. 1999) (observing that when an

attorney “fails to raise an important, obvious defense without

any imaginable strategic or tactical reason for the omission,

his performance falls below the standard of proficient

representation that the Constitution demands.”) (emphasis

supplied).

Moreover, even if there had been a viable, non-frivolous

statute of limitations defense to count five, Akoto suffered no

prejudice from counsel’s failure to address it. Count six of

the indictment – which Akoto does not challenge – was timely and

also charged Akoto with aggravated identity theft. And his

conviction on count six exposed him to the very same 24-month

mandatory consecutive sentence that he challenges with respect

to count five. As noted above, Akoto was ordered to serve those

two 24-month sentences concurrently. Consequently, he can show

11 no prejudice from counsel’s failure to challenge count five as

untimely.

Next, Akoto challenges his attorney’s failure to hire and

call an independent expert witness to explain to the jury about

“IP addresses and what they mean.” Petition at 6. 2 Akoto does

not explain (and it is entirely unclear) how such an expert

might have benefited his defense or how he was prejudiced by the

lack of such a witness. Moreover, the government’s witness,

Secret Service Agent Matthew O’Neill, explained to the jury

precisely what an IP address is, as well as the significance of

IP addresses in his investigation. See Trial Transcript, Day

One, Morning Session (document no. 117) at 44-47 (responding to

the prosecutor’s question, “I would ask [you] for a very short

primer on what an IP address is, please”). Additionally,

defense counsel ably cross-examined that witness and, in the

process, made clear to the jury Akoto’s defense: that someone

else in the house used the computer and/or email addresses

ostensibly linked to Akoto (by the IP addresses) to commit the

crimes at issue. See, e.g., Trial Transcript, Day Two, Morning

2 An IP Address (Internet Protocol Address) is a unique number assigned to each device on a network using the Internet Protocol. Tracing certain IP addresses was, in part, how the government identified Akoto as one of the participants in the conspiracy charged in the indictment.

12 Session (document no. 112) at 8-10; Trial Transcript, Day Three,

Morning Session (document no. 113) at 70-71.

In short, Akoto was not prejudiced by defense counsel’s

strategic decision not to employ an expert witness to explain

computer IP addresses to the jury. See generally Strickland,

(“a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.) (citation

omitted); Watson v. United States,

, 28 (1st Cir.

2022) (“Only when counsel’s strategy was so patently

unreasonable that no competent attorney would have made it may

we hold such performance as deficient.”) (citations and internal

punctuation omitted).

III. Sentencing.

Finally, Akoto claims his counsel provided constitutionally

deficient representation at sentencing. Specifically, he claims

counsel failed to challenge the government’s calculation of

“intended loss” and then failed to argue that the intended loss

overstated the seriousness of his conduct. Petition at 8. That

claim is, perhaps, his weakest.

13 First, it bears noting that defense counsel did argue –

successfully, as it turns out – that the government’s intended

loss calculations for Akoto were too high and unsupported by the

evidence. See Defendant’s First Sentencing Memorandum (document

no. 78) at 2-3. Indeed, following counsel’s challenge to the

loss calculations, the government and the probation office

reexamined the record evidence and significantly revised the

original loss calculations downward from $2,363,349 (intended

loss) and $665,728 (actual loss) to $1,326,633 (intended loss)

and $551,601 (actual loss). Compare Original Presentence

Investigation Report (document no. 73) at 5-6, with Revised

Presentence Investigation Report (document no. 86) at 6.

Then, once those loss calculations were revised downward,

defense counsel challenged them again, asserting that rather

than the roughly $1.3 million intended loss suggested by the

government, that number was more properly calculated at roughly

$360,000 – the same intended loss calculation used for Akoto’s

coconspirator. See Defendant’s Second Sentencing Memorandum

(document no. 94) at 3-5. Ultimately, the court agreed with the

government’s downwardly-revised figures and concluded that Akoto

and his coconspirators had filed at least 310 fraudulent tax

returns, seeking slightly more than $1.3 million in refunds, of

14 which the IRS paid out $551,601. Nevertheless, defense

counsel’s argument did succeed in persuading the court that

Akoto merited a below-Guidelines sentence. Accordingly, he was

sentenced to serve 70 months – significantly less than his

Guidelines range of 92-119 months. See Transcript of Sentencing

Hearing (document no. 116) at 19-20 (referencing defense

counsel’s sentencing memorandum and concluding that, “I find

that the imposition of a mandatory minimum sentence

consecutively to what would normally be the guideline range

would result in a sentence that’s unnecessarily excessive in

view of the values to be served as set out in

(a)”).

Plainly, then, Akoto’s claim that “at sentencing my lawyer

again basically failed to function as a lawyer at all,” as well

as his conclusory assertions that counsel failed to prepare for

sentencing, neglected to adequately review the record, and

failed to argue why a Guideline sentence would be excessive, see

generally Petition at 8, are all undermined by the record.

IV. Appointment of Counsel.

The court declines to appoint counsel to represent Akoto in

this habeas proceeding. Although the court is authorized to

appoint counsel for a petitioner seeking relief under section

15 2255 “if the interests of justice so require,” 18 U.S.C. §

3006A(a)(2)(B), the court of appeals has suggested that such

circumstances are “rare,” United States v. Mala,

(1st Cir. 1993). Akoto “has no constitutional right to

counsel with respect to habeas proceedings.” Ellis v. United

States,

(1st Cir. 2002). To qualify for

appointment of counsel, a petitioner must:

be indigent and the denial of counsel must result in fundamental unfairness impinging on the petitioner’s due process rights. When making a determination, the court must consider: (1) the likelihood of success on the constitutional claim; (2) the factual complexity and legal intricacy of the claim; and (3) the ability of the prisoner to investigate and develop the factual record necessary to the claim.

United States v. Teixeira, No. CR 04-10165-MLW,

,

at *5 (D. Mass. Sept. 6, 2024) (citations omitted). Here, none

of the relevant factors counsels in favor of appointing counsel

for Akoto.

Conclusion

Akoto’s claims are, at best, unsupported, vague, and

conclusory. Perhaps more accurately, they are misleading and/or

directly contradicted by the record. Akoto was more than

adequately represented by able and competent counsel. The

weight of the evidence against him was overwhelming and

16 compelling. And, as demonstrated by its verdict, the jury found

Akoto’s testimony to be self-serving and unworthy of belief.

In light of the forgoing, Akoto has not and cannot satisfy

the second (prejudice) prong of the Strickland test. That is to

say, he cannot demonstrate that “there is a reasonable

probability that, absent the [alleged] errors, the factfinder

would have had a reasonable doubt respecting guilt.”

Strickland,

. Indeed, it would be difficult to

conclude that Akoto could satisfy even the first prong of the

Strickland analysis – at least on the grounds asserted in his

petition.

For the reasons discussed, as well as those in the

government’s thorough and well-supported objection (document no.

5), the petition for habeas corpus relief (document no. 1) is

denied. Akoto’s motion for the appointment of counsel (document

no. 3) is likewise denied. The court declines to issue a

certificate of appealability, but petitioner may seek such a

certificate from the court of appeals under Federal Rule of

Appellate Procedure 22. See Rule 11, Federal Rules Governing

Section 2254 Cases (2010);

(c).

17 The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

May 15, 2025

cc: Emmanuel Akoto, pro se Richard Kelley, Esq.

18