In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3348
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
SALIOU MBAYE,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 800 — Milton I. Shadur, Judge.
____________________
ARGUED DECEMBER 7, 2015 — DECIDED JUNE 28, 2016
____________________
Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. Saliou Mbaye was charged with
bank fraud and mail fraud. The government alleged that he
and three co‐defendants ran a mortgage‐fraud scheme that
“earned” them $600,000. At trial, Mbaye testified and admit‐
ted to his conduct and to the existence of a scheme, but
claimed that he lacked the requisite guilty state of mind. He
2 No. 14‐3348
said that he was duped into helping out his co‐defendants,
who were the only true fraudsters. The jury didn’t believe
him, so he was convicted.
Mbaye contends on appeal that the evidence of his guilty
mind was legally insufficient, but we disagree. The adverse
testimony of two of his co‐defendants, along with circumstan‐
tial evidence that Mbaye was a knowing participant in the
scheme, was enough to support his conviction. He also chal‐
lenges the sentencing judge’s finding that he obstructed jus‐
tice by lying under oath about material facts. But the judge’s
finding was adequately explained and is supported by the
record. Finally, Mbaye argues that his sentence is substan‐
tively unreasonable, but again we disagree. We affirm his con‐
viction and sentence.
I. BACKGROUND
The government contended that Mbaye and his three co‐
defendants ran a mortgage‐fraud scheme. The general struc‐
ture of the scheme can be explained by example: a home‐
owner wants to sell her house for $250,000 but has difficulty
selling at that price. A fraudster agrees to buy the house for
$400,000 if the seller gives the extra $150,000 right back to the
fraudster. The fraudster borrows the purchase money from a
bank by lying—he convinces the bank both that the property
is actually worth $400,000 and that he has the ability to pay
back that amount. The bank has been defrauded. It was con‐
vinced by lies to hand out $400,000 and in return it received a
security interest worth only $250,000 (or less, since the seller
initially had trouble selling at that price). An additional wrin‐
kle: the fraudster doesn’t take out loans in his own name—he
finds “straw” purchasers willing to let their names be used,
for a small fee.
No. 14‐3348 3
That example roughly describes the transactions in
Mbaye’s case. The exact details are unnecessary because
Mbaye admits to all of his conduct and admits that the scheme
was fraudulent. He contends only that his co‐defendants were
the fraudsters and he was duped into helping them without
knowing they were committing fraud. Because fraud requires
a culpable state of mind, he argued at trial that he was inno‐
cent and he argues on appeal that the evidence of his guilt was
insufficient.
The jury rejected his story and convicted him. At sentenc‐
ing, the judge found that Mbaye had obstructed justice by ly‐
ing about material facts. That finding increased Mbaye’s of‐
fense level and accordingly his Guidelines‐recommended
sentence. He argues on appeal that the judge’s finding was er‐
roneous and insufficiently explained.
With the obstruction‐of‐justice enhancement, the Guide‐
lines recommended a sentence between 70 and 87 months.
The judge imposed one of 35 months, which Mbaye argues is
substantively unreasonable because it is too long.
II. ANALYSIS
A. Evidence Sufficient to Convict
In analyzing Mbaye’s challenge to the sufficiency of the ev‐
idence, we view the evidence “in the light most favorable to
the government” and we will “overturn the verdict only when
the record contains no evidence, regardless of how it is
weighed, from which the jury could find guilt beyond a rea‐
sonable doubt.” United States v. Morales, 655 F.3d 608, 634 (7th
Cir. 2011) (internal citation and quotation marks omitted). We
4 No. 14‐3348
do not reweigh the evidence or second‐guess the jury’s credi‐
bility determinations. United States v. Williams, 553 F.3d 1073,
1080 (7th Cir. 2009) (internal citation omitted).
The government contended that Mbaye’s role in the mort‐
gage‐fraud scheme was to launder the money. Mbaye created
a shell company named Veracity Enterprises Corporation and
opened a corporate bank account. Mbaye deposited the prof‐
its from the scheme into that account and then promptly paid
that money out to himself and his co‐defendants, writing “ad‐
ministrative duties” on the memo line of the corporate checks.
Mbaye, as “CEO” of Veracity, signed false documents used to
obtain loans and close sales, and his phone number was on
some of those documents, suggesting he stood ready to verify
the false information. His share of the proceeds was more
than $80,000.
Mbaye admits all those facts but says he didn’t know
anything untoward was afoot. He testified that he was merely
helping a childhood friend. The friend was going through a
divorce and didn’t want to put his money in the bank account
he shared with his soon‐to‐be ex‐wife, so Mbaye handled the
friend’s money as a favor, and the friend paid Mbaye $80,000
as a “thank you”. The jury rejected this story. Mbaye says the
evidence was insufficient to allow that.
We have described an appellant’s challenge to the suffi‐
ciency of the evidence as “a nearly insurmountable hurdle,”
United States v. Taylor, 637 F.3d 812, 815 (7th Cir. 2011), and
Mbaye does not come close to clearing it. For starters, his story
was implausible, which the jury could weigh against him.
United States v. Jocic, 207 F.3d 889, 893 (7th Cir. 2000) (if the
“defendant decides to testify and deny the charges against
him and the finder of fact thinks he is lying, his untruthful
No. 14‐3348 5
testimony becomes evidence of guilt to add to the other evi‐
dence”); United States v. Williams, 136 F.3d 1166, 1168 (7th Cir.
1998) (rejecting sufficiency challenge in part because defend‐
ant’s testimony “reek[ed] of implausibility”).
The government presented further evidence of Mbaye’s
guilt. For example, he didn’t report the $80,000 on his tax re‐
turns, and when he was interviewed by investigators, he lied.
See United States v. Whiteagle, 759 F.3d 734, 757–58 (7th Cir.
2014) (false statements to law enforcement can be probative of
guilt). Most incriminating of all, two of his co‐defendants tes‐
tified against him, saying he was a knowing participant in the
scheme. Mbaye says those witnesses were biased because
they testified in exchange for the government’s agreement to
recommend they receive lenient sentences. But that’s an argu‐
ment for the jury, not this court. United States v. Harris, 791 F.3d
772, 779 (7th Cir. 2015); United States v. Bailey, 510 F.3d 726, 734
(7th Cir. 2007). Indeed, the argument was made to the jury and
the jury rejected it, as it was entitled to do. The evidence—
including the co‐defendants’ testimony, the circumstantial ev‐
idence, and Mbaye’s implausible story—sufficiently sup‐
ported the jury’s verdict.
B. No Error in Finding Mbaye Obstructed Justice
Mbaye argues that the sentencing judge erred by applying
U.S.S.G. § 3C1.1, which adds two points to the offense level if
“the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice with re‐
spect to the … prosecution … of the instant offense of convic‐
tion.” We review de novo the adequacy of the sentencing
judge’s factual findings. United States v. Chychula, 757 F.3d 615,
619 (7th Cir. 2014). We review the correctness of those findings
for clear error and the determination that the facts support the
6 No. 14‐3348
enhancement de novo. United States v. Pellmann, 668 F.3d 918,
926 (7th Cir. 2012).
The enhancement applies if a defendant takes the stand
and “gives false testimony concerning a material matter with
the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” United States
v. Dunnigan, 507 U.S. 87, 94 (1993). Because “inaccurate testi‐
mony … may result from confusion, mistake, or faulty
memory, … not all inaccurate testimony” warrants the en‐
hancement. U.S.S.G. § 3C1.1, App. Note 2. So when a defend‐
ant objects to the enhancement, the “district court must re‐
view the evidence and make independent findings necessary
to establish” perjury. Dunnigan, 507 U.S. at 95. “[T]he district
court should make a finding as to all the factual predicates nec‐
essary for a finding of perjury: false testimony, materiality,
and willful intent,” but explicit findings on each element “are
not necessary if the court makes a finding that encompasses all
of the factual predicates ….” Chychula, 757 F.3d at 619 (empha‐
sis added) (internal citation and quotation marks omitted);
Dunnigan, 507 U.S. at 95.
Mbaye argues that he did not commit perjury because he
told the truth. We easily reject that argument because it asks
us to reweigh the evidence and overturn both the judge’s and
the jury’s credibility determinations, which we do not do.
United States v. Taylor, 701 F.3d 1166, 1173 (7th Cir. 2012).
Mbaye next argues that the judge inadequately discussed
whether the false testimony was willful. Not so. The judge ex‐
plicitly found that Mbaye lied—he didn’t testify inaccurately
due to confusion, mistake, or faulty memory. See Chychula, 757
F.3d at 620–61 (willfulness finding adequate if judge finds the
defendant “lied”); United States v. Johnson, 680 F.3d 966, 982
No. 14‐3348 7
(7th Cir. 2012) (same). The judge repeatedly stated that Mbaye
“chose” to testify the way that he did, and doing so revealed
“a deep character flaw.” The judge stated that Mbaye “de‐
part[ed] sharply from the truth, depart[ed] so sharply that to
characterize it as perjury would not be a mislabel.” The judge
gave a specific example: Mbaye wrote “administrative duties”
on the memo line of corporate checks used to pay himself and
his co‐defendants. He testified that he did so to reflect his own
“administrative” task of writing the check, as opposed to the
more common (if not universal) use of a memo line—to say
why the recipient is being paid. The judge found that story to
be willfully false, calling it “nonsense.” There is no doubt that
the judge found Mbaye’s testimony was willfully false, not a
mistake.
A finding of willfulness makes sense in this case because
there is no reasonable likelihood that Mbaye’s far‐fetched
story was the result of “confusion, mistake, or faulty
memory.” Dunnigan, 507 U.S. at 94; see United States v. Ander‐
son, 580 F.3d 639, 648–49 (7th Cir. 2009) (affirming enhance‐
ment where the defendant “willfully obstructed justice by
falsely denying any knowledge of the criminal nature of the
enterprise”). The judge made an explicit finding of willfulness
and did not clearly err in doing so.
Strangely, Mbaye does not raise the third factual predicate
of perjury: materiality. That’s strange because materiality is
the one predicate that the judge did not explicitly address. The
judge’s error is harmless if the record would clearly have sup‐
ported a finding of materiality. Chychula, 757 F.3d at 621. “[A]
matter is material if it concerns information that, if believed,
would tend to influence or affect the issue under determina‐
tion.” United States v. Riney, 742 F.3d 785, 790 (7th Cir. 2014)
8 No. 14‐3348
(quoting U.S.S.G. § 3C1.1, App. Note. 6). Mbaye has not made
a materiality argument and in any event his testimony was
material. For example, the government argued that Veracity
Enterprises Corporation had no operations, so the fact that
Mbaye held himself out as the “CEO” and wrote “administra‐
tive duties” on the corporate checks showed that he was try‐
ing to disguise the source and nature of the payments. If the
jury believed Mbaye’s testimony—that “administrative du‐
ties” was not active concealment, but an accurate description
of Mbaye’s act in writing the check—it would have weakened
the government’s case. In sum, we find no reversible error
concerning the obstruction‐of‐justice enhancement.
C. No Error in Mbaye’s Sentence
Mbaye’s final challenge is to his sentence. “We review a
district court’s choice of sentence in two steps. First, we assess
de novo whether the court followed proper procedures. If the
decision below is procedurally sound, then we ask whether
the resulting sentence is substantively reasonable.” United
States v. Warner, 792 F.3d 847, 855 (7th Cir. 2015) (internal cita‐
tions omitted); see also United States v. Gall, 552 U.S. 38, 51
(2008). In reviewing for substantive reasonableness, we apply
“a deferential abuse of discretion standard.” Warner, 792 F.3d
at 856. “A below‐guidelines sentence, like a within‐guidelines
one, is presumed reasonable against a defendant’s challenge
that it is too high.” United States v. Poetz, 582 F.3d 835, 837 (7th
Cir. 2009).
Mbaye argues that his sentence should have been lower
because, though he was convicted of both mail fraud and
bank fraud, the government could have chosen to prosecute
him only for mail fraud, in which case no mandatory mini‐
mum would have applied. The argument is factually wrong
No. 14‐3348 9
and legally frivolous. Factually, no minimum applied and
there is no indication that the judge thought otherwise. Le‐
gally, a defendant has no right to be charged with only the
least serious crime that fits his conduct. A defendant who
beats someone to death has no right to be charged with only
simple battery, rather than homicide. We do not suggest
Mbaye did anything that serious, but his argument is of the
same form and is no less misguided.
Finally, Mbaye argues that his positive contributions to his
community—which the record reveals were substantial—
warranted a non‐custodial sentence. But the judge took those
contributions into account and sentenced Mbaye to half of the
low end of the Guidelines range. That sentence is presump‐
tively reasonable on appeal and Mbaye has not overcome the
presumption.
III. CONCLUSION
We AFFIRM Mbaye’s conviction and sentence.