2 2

- 3220 United States v. Kissi



## 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.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 1 6 t h d a y of F e b r u a r y , two thousand twenty

- four

. 3 4 PRESENT: 5 AMALYA L. KEARSE , 6 MICHAEL H. PARK , 7 BETH ROBINSON , 8 Circuit Judges

. 9

_____________________________________ _____ 10 11 United States of America , 12 13 Appellee , 14 15

v. 2 2

- 3220 16 17 Sadick Edusei Kissi, AKA Sealed Defendant 1 , 18 19 Defendant

- Appell ant

. 20

_____________________________________ ______ 21 22 FOR APPELL EE : K ATHERINE R EILLY ( Hagan Scotten and Mitzi 23 Steiner, on the brief )
, Assistant United States 24 Attorneys, for Damian Williams, United States 25 Attorney for the Southern District of New York, N ew 26 York, NY. 27 28 FO R APPELLANT : L UCAS A NDERSON , Rothman, Schneider, Soloway & 29 Stern
, LLP, New York, NY. 30 312 Appeal from a judgment of the United States District Court for the Southern District of 1
New York ( Crotty
, J

. ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court is AFFIRMED

. 4
Appellant Sadick Edusei Kissi was indicted on four counts : Count One for conspiracy to 5

commit wire fraud in violation of 18 U.S.C. § 1349 ; Count Two for conspiracy to commit money 6
laundering in violation of 18 U.S.C. § 1956(h) ; Count Three for conspiracy to receive stolen 7
money in violation of 18 U.S.C. § 371 ; and Count Four for receiving stolen money in violation of 8

18 U.S.C. § 2315. 9

A jury acquitted Kissi on Count One but convicted him on the others

. The district court 10

sentenced Kissi to a below

- Guidelines sentence of 36 months ’ imprisonment
, impos ing a 11

restitution amount of $422,694.53 and forfeiture amount of $101,468. Kissi now appeals
, 12
claiming that the government failed to provide sufficient evidence to find him guilty of Counts 13

Two, Three, and Four

. Specifically, Kissi argues that the government failed to prove that he knew 14

that (1) the funds at issue had been “stolen, unlawfully converted, or taken
, ” 18 U.S.C. § 2315, as 15
required under Count s Three and Four; (2) the funds came from “some form of unlawful activity ,” 16

18 U.S.C. § 1956(a)(1), as required under Count Two; and (3) the purpose of the fund transactions 17
was to “conceal or disguise the nature, the location, the source, the ownership, or the control of 18
the proceeds of specif ied unlawful activity
, ” 18 U.S.C. § 1956(a)(1)(B)(i), as required under Count 19

Two. Kiss i also claims that the district court erred in its loss and forfeiture calculation s

. We 203 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and 1
the issues on appeal. 2
We “review[] de novo a challenge to the sufficiency of evidence supporting a criminal 3
conviction, and must affirm if the evidence, when viewed in its totality and in the light most 4
favorable to the government, would permit any rational jury to find the essential elements of the 5
crime beyond a reasonable doubt.” United States v. Geibel , 369 F.3d 682, 689 (2d Cir. 2004) 6
(citation omitted) . But when a defendant’s Rule 29 motion for acquittal “state[s] a ground 7
different from what he now urges on appeal,” we review for plain error. United States v. Delano
, 8
55 F.3d 720, 726 (2d Cir. 1995)

. As to the district court’s loss and forfeiture calculations , we 9
review factual findings for clear error and conclusions of law de novo

. United States v. Carboni
, 10
204 F.3d 39, 46 (2d Cir. 2000) (loss) ; United States v. Sabhnani , 599 F.3d 215, 261 (2d Cir. 2010) 11
( forfeiture ). “Although the district court’s factual findings relating to loss must be established by 12
a preponderance of the evidence, the court need not establish the loss with precision but rather 13
need only make a reasonable estimate of the loss, given the available information.” United States 14

v. Uddin , 551 F.3d 176, 180 (2d Cir. 2009) ( cleaned up )

. We apply th is same standard to 15

forfeiture. See United States v. Roberts , 660 F.3d 149, 165

- 66 (2d Cir. 2011). 16

I. Sufficiency of Evidence 17

A. Relevant Circumstantial Evidence 18
Multiple fraud victims testified that they sent funds to Kissi at the behest of purported 19
romantic partners they met online. 20
From July 2015 to February 2020, Kissi opened multiple personal U.S. bank accounts; 21
received criminal proceeds amount ing to approximately $1 million of deposits and withdrawals; 224 and facilitated numerous deposits of over $2,000 that he would withdraw i mmediately in cash, 1
through wire transfers, or through account

- to

- account transfers

. Kissi’s deposits often arrived 2

with false references. See, e.g.
, App’x at A483

- 84, A490, A496 (testifying to deposits labeled as 3
“building materials,” “purpose paying loan,” “business investment”). When banks suspected 4
fraudulent activity and closed Kissi’s accounts, he opened new ones and continued to funnel funds 5

into those accounts

. H e also used accounts belonging to his co

- conspirator
, Mubarak Baturi, 6

some of which were held under false names. 7

At trial, Baturi testified that Kissi acted as the “agent” or “middleman” between co

8
conspirators in Ghana and him self

. Baturi’s testimony was supported by text messages with 9

Kissi, discussing transactions to bank accounts under false names and negotiations over Kissi and 10

Baturi’s “cuts” of the proceeds with Ghan aian co

- conspirators, also known as the “fraud boys .” 11
Baturi also indicated that the terms “fraud boys” and “the boys” were interchangeably used by all 12

co

- conspirators, including Kissi. 13

B. Source of Funds 14
The district court properly determined that the government’s evidence was sufficient to 15
prove that Kissi knew the deposited funds were stolen, satisfying the knowledge requirement of 16
the statutes underlying Counts Three and Four

. Because the government’s evidence proved that 17

Kissi knew that the funds ca me from unlawful activity
, the same evidence was sufficient to satisfy 18

the knowledge requirement of the statute underlying C ount Two

. It is well established that juries 19
may make reasonable inferences based on circumstantial evidence. See United States v. Huezo
, 20

546 F.3d 174, 18 0 (2d Cir. 2008) ( “[B]oth the existence of a conspiracy and a given defendant’s 21
participation in it with the requisite knowledge and criminal intent may be established through 225 circumstantial evidence.” ); United States v. Persico , 645 F.3d 85, 104 (2d Cir. 2011) (“The jury 1
may reach its verdict based upon inferences drawn from circumstantial evidence, and the evidence 2
must be viewed in conjunction, not in isolation.” (internal quotation marks omitted) )

. 3
After considering t he totality of the circumstantial evidence, the jury reasonably inferred 4
that Kissi understood that the funds were unlawfully taken, and thus necessarily stemmed from 5
unlawful activity. See Huezo , 546 F.3d at 182 (“[J]urors are entitled, and routinely encouraged, 6
to rely on their common sense and experience in drawing inferences.”). We affirm the district 7
court’s judgment convicting Kissi of conspiracy to receive stolen money and receiving stolen 8

money ; the jury permissibly found that Kiss i had the requisite knowledge of the unlawful source 9

of funds sufficient to support a conviction of conspiracy to commit money laundering. 10

C. Purpose of Fund Transactions 11
Kissi argues that the government did not prove that the fund transactions were designed to 12
conceal the nature, location, source, ownership, or control of the fund s as required to support his 13

conviction of conspiracy to commit money laundering under Count Two. He alleges that the 14
transactions “were needed to advance and complete the charged scams” and that he could not have 15
conspired to conceal anything because there is no evidence to suggest he was attempting to cover 16
up any part of the transactions . Appellant’s Br. at 33 , 35

. He claims that even if he was 17
attempting to conceal the transactions from authorities, the evidence still does not prove that he 18
knew the purpose of the transactions was to conceal the fraudulent activity. Id . at 36. We 19
disagree. First, Kissi concedes that he did not preserve these new challenges at the district court, 20
so we review for plain error. See United States v. Finley , 245 F.3d 199, 202 (2d Cir. 2001 )

. 21
Second, the government provided sufficient circumstantial evidence for a rational jury to infer that 226 Kissi knew the transactions were designed to conceal the nature of the funds as fraud proceeds, 1
the source of the funds as fraud victims, and the ownership and control of the funds by the co

2
conspirators in Ghana

. 3

The district court did not commit error

— much less “plain” error

— in determining that the 4
government’s evidence was sufficient

. W e thus affirm Kissi ’s conviction for conspiracy to 5
money launder

. 6

II. Loss and Forfeiture Calculations 7

A. Loss Calculation 8
The district court did not procedurally err in its loss calculation. Record evidence 9
demonstrates that it was more likely than not that all of Kissi’s undeclared income

— “[m]uch of 10
[which] was untraceable in cash and was quickly withdrawn with large wire transfers and cash 11
withdrawals,” and was related to “suspicious conduct” that “occurred through several bank 12

accounts”

— was from an illegitimate source. App’x at A941. Kissi argues that the loss 13

calculation should be limited to the specific victims and specific timeframe supported by direct 14

evidence, but “the court need not establish the loss with precision but rather need only make a 15
reasonable estimate of the loss, given the available information.” Uddin , 551 F.3d at 180 (internal 16
quotation marks omitted)

. The district court reasonably relied on account transactions from 2015 17

to 2020 , including transactions outside of those involving specific victims that exhibited 18
consistently suspicious activity. 19

Kissi alleges that approximately $135,000 of account

- to

- account transfers and a single 20

$5,614 deposit from his domestic partner were inappropriately included in the court’s $900,000 21

estimat e of funds unlawfully deposited into Kissi’s account. E ven if the contested amounts were 227 removed from the calculus, it would not change the Sentencing Guidelines calculation. The total 1

loss would still fall be tw een $550,000 and $1,500,000
, trigger ing a 14

- level increase in Kissi’s 2

offense level

. Kissi’s alternative argument that certain funds could have come from selling cars 3

or other undeclared employment fails as well

. Kissi stipulated to his employment dating back to 4

2015, and none of it involved selling cars

. Moreover, the testifying forensic accountant 5

considered all of this information when determining Kissi’s sources of legitimate income

. 6

The district court thus appropriately determined that “[b]etween the money in defendant’s 7

account s , approximately $900,000, and the transaction in Mr. Baturi’s accounts, approximately 8
[$]148[,000], the government has proven a loss between 550 [,000] and 1.5 million.” App’x at 9

A942. 10

B. Forfeiture Calculation 11

The district court properly ordered Kissi to forfeit $101,468. First, Kissi claims the district 12

court should have based the forfeiture amount on the restitution amount, not the loss amount. But 13

he provide s no support for that claim ; in fact, restitution and forfeiture are separate measures. See 14

United States v. Torres , 703 F.3d 194, 196 (2d Cir. 2012) (“Restitution and forfeiture are 15
authorized by different statutes and serve different purposes

— one of remediating a loss, the other 16
of disgorging a gain.”). Second, for the first time on appeal, Kissi objects to the court’s use of 10 17

percent for Kissi’s estimated “ cut ” of illegal proceed s to calculate the forfeiture penalty . W e 18

review this new objection for plain error . Although there is no direct evidence in the record of 19
Kissi’s actual percentage cut, the district court permissibly “use[d] general points of reference” 20

and made “reasonable extrapolations from the evidence” in calculating the forfeiture amount. See 21
United States v. Treacy , 639 F.3d 32, 48 (2d Cir. 2011). Specifically, the district court considered 228 Baturi’s testimony regarding his typical cut percentage, varying cut percentages based on whose 1
account was being used and who was taking a higher risk in conducting withdrawals, and cut 2
negotiations w ith Kissi
, in light of the large amount of funds that flowed through Kissi’s own 3

accounts . Based on this information, the district court reasonably determined that a 10 percent 4

cut attributed to Kissi was a reasonable estimate. We thus conclude that the district court properly 5

used the loss amount in its forfeiture calculation and did not commit plain error in determining the 6
percentage cut in its forfeiture calculation. 7

We have considered all of Kissi ’s remaining arguments and find them to be without merit. 8
For the foregoing reasons, the judgment of the district court convicting Kissi of conspiracy to 9
commit money laundering, conspiracy to receive stolen money, and receipt of stolen money is 10

AFFIRMED

. Kissi’s motion for bail pending appeal is DENIED as moot. 11

12 FOR THE COURT: 13 Catherine O ’ Hagan Wolfe, Clerk of Court 14