11-283-cr
United States v. Kaba
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 11th day of September, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 SUSAN L. CARNEY,
9 Circuit Judge
10 JOHN GLEESON,
11 District Judge.*
12
13
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15 United States,
16 Appellee,
17
18 -v.- 11-283-cr
19
20 Tamba Kaba
21 Defendant-Appellant.
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23
24 FOR DEFENDANT-APPELLANT: Lenny Franco, The Franco Law
25 Firm PC, Atlanta, GA.
26
27 FOR UNITED STATES: Peter A. Norling and Amy Busa,
28 Assistant United States
29 Attorneys, for Loretta E. Lynch,
*
The Honorable John Gleeson, United States District
Judge for the Eastern District of New York, sitting by
designation.
1
1 United States Attorney for the
2 Eastern District of New York,
3 Brooklyn, N.Y.
4
5 Appeal from a judgment of the United States District
6 Court for the Eastern District of New York (Johnson, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
9 AND DECREED that judgment of the district court is AFFIRMED.
10
11 Defendant Tamba Kaba was convicted of two counts of
12 smuggling elephant ivory and one count of selling elephant
13 ivory, 18 U.S.C. § 545; 16 U.S.C. § 3372(a)(1), and was
14 sentenced to three concurrent terms of 33 months’
15 incarceration, three years of supervised release, forfeiture
16 of $73,000, a $25,000 fine, and a $300 special assessment.
17 We assume the parties’ familiarity with the underlying
18 facts, the procedural history of the case, and the issues on
19 appeal.
20 [1] Kaba argues that insufficient evidence established that
21 he knew he was importing elephant ivory and that he knew
22 that importing elephant ivory is illegal. Because these
23 challenges bear only on his smuggling conviction, we affirm
24 Kaba’s conviction for selling elephant ivory.
2
1 A defendant challenging the sufficiency of the evidence
2 takes up a “heavy burden,” United States v. Gaskin, 364 F.3d
3 438, 459 (2d Cir. 2004) (internal quotation marks omitted),
4 because the standard of review is “exceedingly deferential,”
5 United States v. Hassan, 578 F.3d 108, 126 (2d Cir. 2008).
6 A conviction must be affirmed against a challenge to the
7 sufficiency of the evidence if “any rational trier of fact
8 could have found the essential elements of the crime beyond
9 a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
10 (1979). In evaluating evidence sufficiency, “we must view
11 the evidence in the light most favorable to the government,
12 crediting every inference that could have been drawn in the
13 government’s favor and deferring to the jury’s assessment of
14 witness credibility and its assessment of the weight of the
15 evidence.” United States v. Chavez, 549 F.3d 119, 124 (2d
16 Cir. 2008) (internal citations, brackets, and quotation
17 marks omitted).
18 Sufficient trial evidence supported Kaba’s smuggling
19 conviction. He was in Africa when the ivory was shipped
20 from Africa to the United States. Kaba paid the shipping
21 costs associated with both shipments, hired a freight-
22 forwarder to pick up the shipments at the airport, and Kaba
23 then transported those shipments to a storage facility in
24 trucks he rented. The packing material in which one
3
1 shipment of ivory was encased was found in the dumpster
2 outside the facility. Later, Kaba sold a piece of ivory
3 from one of the shipments to Dr. Jarra, who wrote on the
4 check used to pay for the piece that the check was for the
5 “ivory balance.” That check was deposited into Kaba’s
6 account.
7 Kaba’s primary argument is that the evidence is
8 insufficient because there is no direct evidence that Kaba
9 knew that the shipments contained ivory. But, “knowledge
10 and intent can . . . be proved through circumstantial
11 evidence and the reasonable inferences drawn therefrom,”
12 United States v. MacPherson, 424 F.3d 183, 189 (2d Cir.
13 2005) (collecting cases), and, here, reasonable inferences
14 drawn from the evidence establish that Kaba knew the
15 shipments contained ivory.
16 There was also sufficient evidence that Kaba knew that
17 importing ivory was illegal. Kaba conceded during his
18 testimony that he had “‘heard from people’” that “‘you
19 cannot import ivory into the United States.’” Gov’t Br. at
20 7 (quoting T:384). In addition, the packaging of the ivory
21 pieces--hidden in hollowed-out compartments of statues--is
22 strong evidence that Kaba (as importer) knew the ivory was
23 being imported illegally.
4
1 [2] Kaba challenges his sentence on the ground that his
2 trial counsel provided ineffective assistance by failing to
3 review the pre-sentence report (“PSR”) with Kaba, who claims
4 he does not read English and thus could not read the PSR.
5 To prevail on a claim of ineffective assistance of counsel,
6 a defendant must demonstrate, first, “that counsel’s
7 performance was deficient,” that is, the attorney made
8 errors so serious that the representation “fell below an
9 objective standard of reasonableness,” and, second, that
10 there was prejudice--i.e., a reasonable probability that,
11 absent counsel’s errors, the outcome of the proceeding would
12 have been different. Strickland v. Washington, 466 U.S.
13 668, 687-88, 695 (1984); accord Kimmelman v. Morrison, 477
14 U.S. 365, 375 (1986).
15 Kaba cannot show prejudice. He asserts that if he had
16 received adequate counsel he would have objected to the two-
17 level enhancement for commission of the offense for
18 pecuniary gain because he did not profit from the single
19 sale of ivory for which he was convicted. But the
20 enhancement does not require Kaba to realize a profit in the
21 transactions. It applies “[i]f the offense . . . was
22 committed for pecuniary gain or otherwise involved a
23 commercial purpose.” U.S.S.G. § 2Q2.1(b)(1) (emphasis
5
1 added). “‘For pecuniary gain’ means for the receipt of, or
2 in anticipation of receipt of, anything of value, whether
3 monetary or in goods or services.” U.S.S.G. § 2Q2.1, cmt.
4 n.1. Actual profit and profitability are beside the point.
5 The reference to “anticipat[ed]” receipt of “anything of
6 value” confirms that the enhancement applies whenever the
7 defendant anticipates a profit or anything of value.
8 Accordingly, Kaba’s sale of the ivory--even if he did not
9 turn a profit--supports the two-level enhancement of his
10 sentence.1
11
12 We have considered all of the additional arguments and
13 find them to be without merit. Accordingly, the judgment of
14 the district court is AFFIRMED.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
20
1
In any event, since Kaba sold at least one ivory
piece, the offense involved a commercial purpose, which
would support the two-level enhancement. See U.S.S.G.
§ 2Q2.1(b)(1).
6