United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 2, 2007
Charles R. Fulbruge III
Clerk
No. 05-20273
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORDRICK MAGISHAWE TUGULALE,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-00018
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
A jury convicted defendant Tugulale of aiding and abetting
bank fraud and attempting to commit bank fraud, in violation of 18
U.S.C. § 2, 1344, 1349, and found that he took property valued
between $400,000 and $1 million. On appeal, Tugulale urges three
points of error: that the district court erred in denying his
motion to suppress based on alleged lack of consent to search his
car, that insufficient evidence supported the verdict, and that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-20273
-2-
Government violated his right to consular access under the Vienna
Convention.1
We review the district court’s conclusion that Tugulale
validly consented to the search of his truck for clear error. See
United States v. Vega, 221 F.3d 789, 795 (5th Cir. 2000). The
district court did not clearly err in applying the six-factor test
of United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir.
1988). The testimony of Postal Service Inspector Boyden strongly
supports this conclusion. Tugalale’s argument on appeal is, as it
was below, essentially that Boyden lied and Tugalale told the truth
regarding the circumstances surrounding the consent. But it’s for
the district court to make credibility determinations, see United
States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996), and here the
district court expressly found Tugalale not credible. We will not
disturb that founded judgment.
Tugalale summarily argues insufficiency of evidence as well.
A rational jury could’ve disbelieved Tugalale’s story that he was
framed and instead credited the copious evidence - testimony from
multiple witnesses, physical evidence found on Tugalale, and
recorded conversations - to find Tugalale guilty beyond a
1
Tugulale correctly concedes that he cannot pursue the last
argument on direct appeal, see United States v. Jimenez-Nava, 243
F.3d 192, 195-200 (5th Cir. 2001); Sanchez-Llamas v. Oregon, 126
S.Ct. 2669, 2687 (2006), raising it only to note his intention to
press the claim collaterally as a due process claim, see Rosales
v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733,
737-38 (5th Cir. 2005), and preserve it should this court or the
Supreme Court later require it to be raised on direct appeal.
No. 05-20273
-3-
reasonable doubt. See United States v. Aubin, 87 F.3d 141, 144
(5th Cir. 1996). Tugalale briefly challenges the jury’s special
finding as to the amount he tried to steal, noting only that the
Government recovered all but $1,000. This argument goes to
sentencing, not guilt, and Tugalale does not appeal his sentence;
in any event, there was plenty evidence that Tugalale attempted to
steal between $400,000 and $1 million, and it’s irrelevant that the
Government recovered most of that money, see U.S.S.G. § 2B1.1(b).
AFFIRMED.