NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0820n.06 No. 11-2600 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellant,

v. RAOGO OU EDRAOGO, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT C OURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

Be fore : NORRI S, COOK, and MCKEAGUE , Circuit J udg es. COOK, Circuit J udg e. Def endant Raog o Ouedr aog o was char g ed, along with co-de fenda nt Rami Saba , with va

rious offe nses re lating to the Septe mber 2007 disappe ara nce of Donald Dietz. After a four- wee k trial, the jury found Ouedr aog o g uilty of con s p i racy to commit bank fra ud, 18 U.S.C. § 1344(2) and § 1349, conspirac y to commit k idnapping , 18 U.S.C. § 1201(c) , and kidnapping resulting -in-dea th, 18 U.S.C. § 1201(a)

. Nine months later, the district court g ra n t ed Ouedr aog o’s Rule 29 motion for judgme nt of acquitt al due to insufficient evidenc e, reve rsing all three verdic ts and, in the alterna tive, g ranting a new trial. The g overnme nt chal l en ges b o t h decisions. We AFF I RM the court’s acquittal judgme nt on the s ubstantive kidnapping conviction, but REVERSE the acquittal respe cting the conspirac y co unts, as well as the new- trial g rant, and REMAND for

sentenc ing.No. 11-2600

United States v. Oue draogo

I

. A. The Crime

L ate in the afte rnoon on September 11, 2007, Donal d Dietz called his bank asking about intere s t ra t es . This was the last any one hear d from him. He is presumed dead. The 66-y ear -old retire e had few friends and no social life, living in Sarana c, a seclude d are a of Michig an neig hboring Gra nd Rapids. Dietz did have, howeve r, nea rly $450,000 in retireme nt saving s, most of which he kept in his L ake Mic higa

n Credit Union (“L MCU”) a ccount.

A few day s afte r the disappea ranc e, someone impersonating Dietz called L MCU, reque sting

a complete transfe r of his money to a L ebane se bank acc ount. Someone also fo rge d Di etz ’s signa ture on two c hecks, totalingaround $12,000.

B. The Suspects: Motive and Opportunity

Ouedr aog o and Saba met in the mid-1990s while pursuing doctora l deg ree s in Be lgium. (R. 585, TTR 2107-08, 2149-50.) They rema ined in touc h even afte r Ouedr aog o moved to the United S t ates in 2001. Ouedr aog o descr ibed Saba as his “close st” friend, explaining that they “s h ar ed [t heir] problems.” (

Id

. at 2156, 2170.) Saba’s wife, Sarah Saba, confirme d as much, claiming that her husba nd confide d in Ouedra og o more than he did in her. (R. 547, TTR 1059-60.)

- 2 -No. 11-2600

United States v. Ouedraogo At the time Dietz disappeared, Saba lived in Lowell, Michigan, a community neighboring Grand Rapids and Saranac. Though Ouedraogo lived in Philadelphia, he visited Saba four times in 2007, and phone records place him in the Saranac area around the time of the disappearance. Saba first met Dietz in the summer of 2006 while working as a sales representative for Banker’s Life Insurance. During the course of the sales pitch, Saba reviewed Dietz’s savings and even went to visit his Saranac home. By late 2006, Saba’s financial situation had taken a turn for the worse. Having already lost his job at Banker’s Life, he was facing unemployment again for failing to meet his sales quota at New York Life Insurance (“NYL”). Cue Dietz. After leaving Banker’s Life and starting with NYL, Saba went to see Dietz twice in November and December 2006 redoubling his efforts to persuade the retiree to invest. Authorities began investigating Saba after tracing the LMCU transfer request to a Lebanese bank account controlled by Saba’s father. Further investigation revealed that Saba worked with a partner, and Ouedraogo fit the bill with ties to both Saba and Saranac around the time of Dietz’s disappearance.

C. Trial Though severed, Ouedraogo’s and Saba’s trials largely mirrored one another. The government portrayed Dietz as “the perfect mark” (R. 609, TTR at 2842), a recluse with plenty of money but few social connections, who would not be missed. Casting Ouedraogo in a supporting

- 3 -No. 11-2600

United States v. Ouedraogo role, the government argued that he knowingly and voluntarily agreed to help Saba kidnap and kill Dietz in order to steal the retiree’s savings. ( Id. at 2840 (“Rami Saba is the central figure in a scheme to kidnap and kill Donald Dietz and steal his money. What this case is about is the fact that . . . Ouedraogo[] knowingly and voluntarily agreed to help Rami Saba execute that scheme.”).) Ouedraogo did not testify at his trial, but the government introduced his pre-recorded conversations with investigators. Briefly, the government’s evidence touched on the following themes. 1. Increased Contact Prior to Dietz’s Disappearance Despite Saba and Ouedraogo’s close friendship, they visited one another just once between 2002 and 2007. Yet, during the six-month period between March 25 and September 11, 2007, Ouedraogo visited Saba in Grand Rapids four times (March, July, August, and September), and Saba visited Philadelphia at least twice. (R. 542, TTR at 794-96; R. 741, Ex. 187A at 1-2, 4.) Saba used his credit card to pay for two of Ouedraogo’s visits, adding hundreds to his $16,000-credit card debt. (R. 542, TTR at 822-824; R. 741-3, Ex. 187C at 1.) Ouedraogo did not mention either the July or August trips during the interviews with police regarding Dietz’s disappearance; he likewise kept Sarah Saba in the dark about his September visit. (R. 547, TTR at 1098.) This secrecy, the government offered, reveals Ouedraogo’s dissembling. In addition to in-person visits, Saba and Ouedraogo’s phone communication spiked in 2007. Whereas in 2006, they exchanged just 350 calls (R. 735-2, Ex. QQQ at 1), in 2007 they phoned each other 793 times (R. 735-4, Ex. SSS at 1). In January 2007 alone when the alleged conspiracy - 4 -No. 11-2600

United States v. Ouedraogo began they spoke by phone 88 times ( id. ), more than doubling their 35 calls the previous January (735-3, Ex. RRR at 1). During the September when Dietz disappeared, records show 179 calls, totaling 791 minutes. (

Id. ) 2. Pepper Spray/Stun Gun In July of 2007, Saba purchased two cans of 18% pepper spray online from a Texas company. The seller’s description of the product as causing “sensational burning on the face” capable of “drop[ping an individual] to the ground,” aligns with its use as a weapon of incapacitation. (R. 542, TTR at 912, 922-23, 929-30.) Phone and purchase records reveal that shortly before making the purchase, Ouedraogo and Saba spoke on the phone. During the conversation, Saba accessed the website of Aaron Imports, an Ohio-based vendor specializing in self-defense products, including pepper spray and stun guns. (R. 542, TTR at 861-62; R. 735-3, Ex. RRR at 14 (calling Ouedraogo on July 16, 2007, at 3:46 p.m. for 31 minutes); R. 740-3, Ex. 156C at 1 (accessing Aaron Imports’s website on July 16 at 4:09 p.m.).) Minutes after ending the call with Ouedraogo, Saba tried unsuccessfully to call Aaron Imports using a calling card. (R. 738-4, Ex. 137A at 1 (calling “937” number at 4:25 p.m., and 4:26 p.m.); R. 542, TTR at 863-64 (owner of Aaron Imports, giving same “937” number for the business, identifying the calls on Exhibit 137A).) A few days after Saba’s pepper-spray purchase, Ouedraogo traveled to Grand Rapids, and the two men made a trip to Moraine, Ohio the location of Aaron Imports, according to the store’s website. The government argued this was a third attempt to obtain a stun gun from the store, - 5 -No. 11-2600

United States v. Ouedraogo pointing to Saba’s credit card, computer, and phone records. Saba’s credit card reflects gas purchases in southeastern Michigan and northeastern Ohio, along a route to Moraine. His computer records show that Saba accessed Aaron Imports’s website before leaving for Ohio, consistent with looking up the store’s address. (R. 740-3, Ex. 156C at 1 (visiting Aaron’s website twice on July 25th).) Ouedraogo’s phone records show several missed calls from his wife. Soon thereafter, Saba’s home phone called Saba’s cell, prompting another call from Saba’s phone to Ouedraogo’s home line. Ouedraogo’s wife testified that Ouedraogo called her from Saba’s phone that night. (R. 609, TTR at 2871.) This suggests that Ouedraogo left his phone at Saba’s home during the Ohio trip and used Saba’s cell phone to return his wife’s calls. They were unable to procure the pepper spray and stun gun during that trip, the government explained, because Aaron Imports relocated in May or June of 2007 and failed to update its web address. (R. 542, TTR at 867.) Upon returning home, Saba again accessed Aaron’s website, ostensibly to check the store’s (still outdated) address. (R. 740-3, Ex. 156C at 1.) Barely two weeks after the July trip, Ouedraogo traveled again to Grand Rapids on a ticket Saba purchased. (R. 542, TTR at 810, 823-24.) Again, Ouedraogo never mentioned this Grand Rapids trip in his later statements to investigators. And he stayed at a motel, though he had stayed at Saba’s house during previous trips suggesting an attempt to conceal the visit from his friend’s wife.

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United States v. Oue draogo
The day afte r Ouedr aog o returne d to Philadelphia, Saba purcha sed a stun g un o n l i n e. (R. 542, TTR 932, 936-37; R. 739-2, Ex

. 146 at 1-3.) When questioned later, the store owner descr ibed this stun g un as one of the most power ful on the marke t, capa ble of leaving a person “fa tigue d and

weak.” (R. 542, TTR at 942-944.)

Be cause stun g uns are illega l in Michig an, Saba direc ted shipping to his friend Kwok-Peng Ng , an Ohio resident. (R. 739-2, Ex

. 146 at 1.) Thoug h initially reluc tant, Ng ag ree d to forwa rd the g un when Saba

claimed a

brea k-in prompted his ne ed for the stun g un to “ protec t his family .” (R. 542, TTR at 950.) But Sarah Saba contra dicted the story at trial, deny

ing the alleg ed burg lary and

answe ring “no” when asked “D o y o u fee l [y ou] need[ed] to have protec tion [i n] y our [L owell] home? ” (R. 547, TTR at 1073-74. ) Ng forwa rded the stun g un in late Aug ust. Ng ’s contac t information appea

red on Ouedr aog o’s computer and had been acc essed a littl e over a month befor e Saba’s stun g un purcha se. (R. 741, Ex. 157A at 1-2.)

3. Ouedr aog o Trave ls to Grand Rapids in September/Die tz Dis appea rs
Ouedr aog o ag ain made another secr etive trip to Gra nd Rapids, arr iving just befor e noon on Tuesday , September 11 and depar ting just a fter 5 p.m on Thursday the 13th. (R. 542, TTR at 794- 96.) At trial, the g overnme nt arg ued that Ouedr aog o and Saba car ried out the kidnapping during this final trip. Fir st, however , it had to show Dietz actually disappea red during this time. To that end, the governme nt cited Dietz’s telephone rec ords and acc rued mail. Records confirme d that Dietz place d his last call on September 11 (R. 742, Ex

. 207 at 14), calling his banker to ask about interest - 7 -No. 11-2600

United States v. Oue draogo

rate s (R. 542, TTR at 833-35). The banker rea dily identified the caller as Dietz by his char acte ristic

s t u tter. ( Id

. at 833) Phone rec ords show Dietz made no other calls on the 11th, and m i s s ed al l incoming calls s tarting September 12. (R. 742, Ex

. 207 at 14-15.) Next, althoug h Dietz did not

rec eive mail ever

y day (R. 507, TTR at 549-50), a neig hbor testified that he chec ked his mail near ly

ever y day (R. 504, TTR at 345, 355). Yet Dietz’s mailbox overf lowed with uncollecte d mail by the time his brothers reporte d him missing on Septemb er 2 5

. ( Id. at 292, 355; R. 553, TTR at 1590.) The oldest piece of m ail in the bunch was postm arke d September 12, sug g esting the l etters beg an

acc umulating around September 15. (R. 596, TTR at 2698-99.) Dietz also missed a September 15 family reunion, afte r missing sever al calls from his brothers reg arding t h e g et-tog ether

. (R. 504, TTR 281-82.)

To show that the defe ndants actua lly planned t o carry out the kidnapping during this time frame, the g overnme nt pointed to sever al odd occur renc es. First, while driving to Ouedr aog o’s hotel

on September 12th, Saba lied to a police office r who pulled him over for illega lly removing his car ’s license plate from the bumper. (R. 542, TTR at 841-42.) When the office r asked for Saba’s insurance information ( id

. at 845), which he kept in the g love compar tment (R. 547, TTR at 1102), Saba claimed to be uninsured and that the g love compar tment was locked (R. 542, TTR at 844-49). Saba’s wife later testified that their car was alway s insured. (R

. 547, TTR at 1102.) Saba, inexpl icably , pref

err ed to pay a ticket than open his g love compar tment. Ba sed on this evidenc e, the g overnme nt arg ued that Saba: 1) hid his license plate to avoid identification, and 2) lied to avoid opening the g love compar tment, where he likely

stashed the stun g un and peppe r spra y . - 8 -No. 11-2600

United States v. Ouedraogo After spending the night of September 11 in a Motel 6, Ouedraogo checked out the very next day without explanation. Saba called Ouedraogo around 6:30 a.m. on the 12th, and again at 9:40 a.m., right after his license-plate-related encounter with the police. Soon after this call, Saba arrived at the motel and, according to Ouedraogo, the two drove around looking for new lodging and talking about Ouedraogo’s marital problems the reason for his trip, according to the story he gave investigators. He checked into the Days Inn around 2 p.m, leaving several hours unaccounted for. (R. 739-4, Ex. 150 at 1-3.) Ouedraogo tried to fill in the gaps by claiming that he and Saba got lost on the way to the second hotel which was located just four miles from the Motel 6. (R. 585, TTR at 2240-41.) On the last day of the trip, September 13th, around 9:30 a.m., Saba called Ouedraogo, the call pinging a cell tower near the Days Inn. Ouedraogo checked out around 11:30 a.m., after Saba came to pick him up. (R. 739-4, Ex. 150 at 4.) The two men began driving, which Ouedraogo again attributed to wanting to discuss his marital problems. Saba received a call from his wife while in Saranac at 12:16 p.m. Within 36 minutes, Saba’s phone pinged off a cell tower near his home. (R. 579, TTR at 1895-96.) Saba’s wife testified that she called him and asked that he return home in order to arrange medical care for their sick newborn. Ouedraogo claimed Saba drove him back to the Days Inn, but the government argued this was implausible because 1) Ouedraogo had already checked out of the hotel, and 2) the hotel was too far from Saranac for the story to make sense. (R. 585, TTR at 2241-42.) The government tied together this evidence as follows: Saba picked up Ouedraogo at his hotel and the two men traveled to Saranac, where they kidnapped and killed Dietz. - 9 -No. 11-2600

United States v. Ouedraogo After the unexpected call from Saba’s wife, Saba rushed home, leaving Ouedraogo alone in Dietz’s home. Ouedraogo called Saba at 2:42 p.m. that afternoon (R. 737-1, Ex. 134B at 2), and again at 10:10 p.m. that night ( id. ) after returning to Philadelphia (R. 542, TTR at 794-96). 4. SIM Phone (“719 number”) and Tracfone Use At some point during the September trip, Saba gave Ouedraogo the SIM (Subscriber Identity Module) card for Saba’s third line, 616-719-9666 (“SIM phone” or “719 number”) (R. 585, TTR at 2227-29), a line Sarah Saba knew nothing about (R. 547, TTR at 1125). Ouedraogo used the SIM card to communicate with Saba 54 times between September 15 and 28, around the time Saba was trying to transfer Dietz’s LMCU funds. (R. 735-3, Ex. RRR at 20-21) Calls placed using this card would register as coming from Saba’s account, permitting the two men to call each other while making it seem like Saba’s two lines were calling one another. At trial, the government argued that the purpose of the SIM card exchange was to conceal conspiracy-related communications between the two men. The government also introduced evidence suggesting that Saba tried to cover his call-history using a tracfone a prepaid cell phone that does not require the purchaser to provide any identifying information. (R. 553, TTR at 1536-37.) Saba purchased the device on September 18, turned it on the following day and, within minutes, called Ouedraogo’s SIM phone. ( Id . at 1541; R. 736-3, Ex. 121 at 1.) Evidence linking Saba to the tracfone included the circumstances surrounding its purchase at a Staples store in Grand Rapids (R. 553, TTR at 1555-56), two minutes before Saba’s cell phone - 10 -No. 11-2600

United States v. Oue draogo pinge d off a tower near the store (R. 736-3, Ex

. 121 at 1). Fur ther, the trac fone and Saba’s persona l phone pinge d off the same towers, sug g esting that they wer e in the same cover ag e are a. ( See R. 736- 3, Ex . 121 at 1-4 (c alls using tra cfone use B owes Rd, L owell tower to field ca lls from Saba).)

Fr om September 19th to the 30th, Saba used the trac fone 34 times. Calls using this phone, the g overnme nt offe red, rela ted to the bank fra ud conspirac y . They included calls to L M C U (to transfe r Dietz’s money

), various utilit y companies (to close Dietz’s service acc ounts), and Ouedr aog o (to keep the co-c onspirator informed of the plan’s prog ress). The trac fone calls, which the g overnme nt arg ued implicated Saba in both the fra ud and kidnapping char g es, usually followed

or prec eded Saba’s calls to Ouedr aog o’s SI M phone. The L MCU calls, for example, occur red within minutes of calls to Ouedr aog o. (R. 736-3, Ex. 121 at 1-3.)

5. Bounc ed Chec ks

The g overnme nt’s evidenc e also showed that Saba forge d an d at tempted to deposit two chec ks draw n on Dietz’s acc ount s o o n af t er Ouedr aog o’s September trip to Gra nd Rapids: September 17, and October 1. (R. 507, TTR at 533-34, 537-38 (re viewing evidenc e).) On October 2, Saba’s bank called to inform him that they place d a hold on the two chec ks. (R. 745-3, Ex

. 135 at 4 (c al l at 3 : 3 6 p.m.).) Saba called Ouedr aog o’s cell approximately half an hour later, but Ouedr aog o did not answe r. Thoug h Saba missed Ouedr aog o’s return call a minute later, they spoke for f our minutes an hour later. The g overnme nt a rg ues that the short time be tween the Ouedr aog o and bank calls sig nals that Saba a nd Ouedr aog o wer e par

tners in the fraud s cheme

. (R. 609, TTR - 11 -No. 11-2600

United States v. Ouedraogo at 2887.) Also, Franklin Ash, Saba’s fellow inmate, testified that Saba told him about a call he placed to his “partner,” because “he was worried he was going to get caught because of the check bouncing.” (R. 586, TTR at 2311.) 6. Lake Michigan Credit Union (LMCU) On September 19, in relatively short succession, Saba made two calls to Ouedraogo’s SIM phone and one to LMCU, followed later that day by a call to his father in Lebanon. (R. 736-3, Ex. 121 at 1.) The next day, someone impersonating Dietz sent a type-written letter to LMCU, directing the bank to close his account and transfer the $443,606 balance to an account at Blom Bank in Lebanon Saba’s father’s account. (R. 542, TTR at 764-65, 770; R. 740-2, Ex.155A.) The letter was a fake; someone had forged Dietz’s signature. Forensic analysis of Saba’s computer revealed fragments of the letter and a file related to the letter’s envelope. Less than seven minutes after creating the envelope file, Saba had a six-minute phone conversation with Ouedraogo. (R. 740-4, Ex. 156G at 1; R. 736-3, Ex. 121 at 1.) They called each other four more times that day. (R. 736-3, Ex. 121 at 1.) On September 21, someone using the tracfone called LMCU to confirm the transfer order. (R. 542, TTR at 773-75.) The employee who took the call described the voice as male with a Middle Eastern accent. (R. 542, TTR at 778.) Suspicious, the employee requested a handwritten, notarized letter from the caller, who became “irritated” at the request. (R. 542, TTR at 783.) This employee notified a second LMCU employee, explaining that she was “uncomfortable” with the typewritten letter’s request. (R. 525, TTR at 684.)

- 12 -No. 11-2600

United States v. Ouedraogo On September 24, Saba made another tracfone call to LMCU seeking to empty the account. (R. 525, TTR at 686-88; R. 736-3, Ex. 121 at 1 (cell tower nearest Saba’s home).) The second LMCU employee also identified the caller as male, with a heavy Middle Eastern accent. (R. 525, TTR at 687.) That employee echoed the first employee’s directions that the caller Saba needed to fax a handwritten, notarized letter before the bank would honor the request. (R. 525, TTR at 688- 89.) Within two minutes of that call, Saba used his cell phone to call Ouedraogo’s SIM phone. (R. 736-3, Ex. 121 at 1.) 7. Ouedraogo’s September 26 Trip to Brooklyn/Saba’s “Notarized” Letter Two days after the LMCU call, Ouedraogo drove from Philadelphia to Brooklyn, New York, exchanging 13 phone calls with Saba along the way. (R. 737-1, Ex. 134B at 10-11.) After arriving in Brooklyn, Ouedraogo talked to Saba for a total of 47 minutes, using a cell tower near Sharlene Seixas’s bookstore. (R. 554, TTR at 1798-99; R. 579, TTR at 1953-57; R. 742-1, Ex. 236 at 1.) Seixas was a notary public, working primarily out of her bookstore. (R. 554, TTR at 1799.) Forensic analysis of Saba’s computer uncovered a copy of a handwritten letter, purportedly written and signed by Dietz, dated October 3, 2007. This letter had a typed signature block and a Brooklyn notary’s signature. (R. 742-2, Ex. 267 at 2.) The notary testified that, though this was her signature, the document’s typed signature block and missing notary-seal proved it a fake. (R. 554, TTR at 1802-03.) A computer forensic expert testified that this letter was located in a file consistent with having been scanned into the computer (R. 552, TTR at 1269-70), stitched together from - 13 -No. 11-2600

United States v. Ouedraogo several individual scans ( id . at 1277-79). At trial, the government argued that Ouedraogo went to Brooklyn to secure Seixas’s signature for Saba in furtherance of the bank fraud.

8. Call to Gene Dietz On September 30, Saba called Gene Dietz the victim’s brother using the tracfone, posing as Donald Dietz, and requested help with making the transfer from LMCU. (R. 553, TTR at 1590- 95.) The caller had a “strange tale,” which culminated in the “tracfone Dietz” claiming to be leaving the country, hence the need to transfer his LMCU funds out of the country. Gene, aware of his brother’s absence and reclusive nature, confronted the caller, accusing him of hurting the real Donald Dietz. Flustered, the caller hung up suddenly. ( Id . at 1596-99.) Saba stopped using the tracfone after that. (R. 736-3, Ex. 121 at 4.)

9. Saba’s Life Insurance On October 1, 2007, Saba applied for a five-year term policy valued at $750,000, with an accidental death benefit of $300,000. He listed Ouedraogo as a 20% beneficiary, the equivalent of about half of Dietz’s savings. (R. 507, TTR at 507-08 (20% of $1,050,000, or about $210,000).) The government argued this was Saba’s way of insuring Ouedraogo’s payout, even if the conspiracy failed. Just over two weeks later, Saba visited Ouedraogo in Philadelphia, returning the following day. The government related this trip to Saba’s life insurance payment (R. 736-1, Ex. 102 (check - 14 -No. 11-2600

United States v. Oue draogo
for $472.20 clea

red October 12)), arg uing that Saba wanted to rea ssure Ouedr aog o that he would g et his share, e ven if the pla

n fell throug h.

Four day s afte r Saba’s return, police beg an their surveillance of him. (R. 585, TTR at 2267- 68.) That same day , Saba drove headlong into a g uard rail on a clea r and dry day , circ umstances that made the detec tives following him consider the act either “intentional” or “ver y unusual.” (R. 554, TTR at 1793-96.)

10. J ail Call

Police arr ested Saba on Dec ember 13, 2007, placing him in Ke n t C ounty J ail. The first person he called was Ouedr aog o. Saba later asked his wife to call Ouedr aog o and tell him the details of the a rre st (R. 547, TTR at 1114), to warn him, the g overnme nt surmised.

11. Gover

nment’s Witness Franklin Ash

Saba first met Fr anklin Ash in Marc h 2009 when they wer e inmates at I onia County J ail. At first the two did not g et along , and Ash testified he “tormente d” Saba beca use of his c onnection to Dietz’s disappea

ranc e. (R. 586, TTR at 2370.) Al t h o u g h Ash did not know Dietz persona lly , he “kn[ew] him from around town,” identify ing Dietz as “a quiet g uy , very shy , loner,

. . . known as the bicy cle man.” (

Id. at 2369.) Despite their initial friction, the two beca me friends afte r Ash war

ned Saba not to confide in another inmate rumored to be a “snitch.” ( Id

. at 2370-72.) Admitting that he did not have a “high opini on” of “snitches,” Ash explained that he testi fied agai n s t S ab a t o avoid - 15 -No. 11-2600

United States v. Oue draogo contempt char g es. (

Id

. at 2372-73.) After testify ing befor e the g rand jury , Ash had to be moved to

a dif fe re n t p rison unit beca

use Saba “ver

bally threa tened to kill [Ash] and [hi s] family .” ( Id

. at 2380.)

Ash rela

y ed part of a 15-20 pag e statement Saba wrote in jail rel at i n g t o Dietz’s disappea ranc e. After Ash advised Saba to f lush the statement down the toilet beca use “it could be used as ev i d en ce ag ainst him,” Saba did so. ( Id

. at 2374.) The statement was not written as a confe ssion; rathe r, it faulted an unidentified third party for the conspirac y in a manner that implicated Saba. ( Id

. at 2303 (“The letter

. . . was written as a third party statement,
. . . it’s not an I or we did, it was a he and they did

. . . .”).) The statement included ref ere nces to a single “partner,” a “plan [t hat] didn’t g o as planned” ( id

. at 2377), and the use of a taser, pepper spray , and tape to “ dispose of a body .” (

Id. at 2376.) Ash stated that Saba told him that afte r the chec ks bounced, the “third person” called his fr iend/partne r. ( Id. at 2377-78.)

D. J ury

Ver dict and District Court’s Judgment of Ac quittal

The g overnm en t ultimately char g ed Ouedr aog o with conspirac y to commit bank fra ud, conspirac y to commi t k i d n ap p ing, substantive kidnapping resulting in death, and conspirac y to commit interstate murder- for- hire. The jury convicted him of all but the interstate murder- for- hire char g e.

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United States v. Oue draogo
Ouedr aog o filed a timely motion for judgme nt of acquittal on all counts or, alterna tively , a

new trial. Despite its ear lier denial of these motions at the close of the g overnme nt’s case , (R. 586, TTR at 2430-33 (“[T]he g overnme nt’s evidenc e is sufficie nt to raise an infere nce that a conspirac y exis ted,

. . . that there was a plan that Mr. Saba was involved with and there is evidenc e that Mr. Ouedr aog o was part of it.”)), and near ly nine months afte r th e v er d i ct , t he court g rante d both motions, dismiss ing the g overnme nt’s case as “nothing more than specula tive hy potheses” (R. 705, Op. at 15). Gra

nting the new- trial motion, the court also found that the jury ’s verdic t c ontradicte d the g rea t weig ht of the evidenc e, and that Ash’s test i m o n y s h o u l d not have been admitted as a hear say exception. The g overnme nt appea ls.

I I

. A. Acquittal for

I nsufficie nt Evidence

This cou rt revie ws de novo a dis trict court’s acquittal due to insufficient evidence , United States v. Humphrey , 279 F.3d 372, 378 (6th Cir. 2002) (citing United States v. Talley , 194 F.3d 758, 764 (6th Cir. 1999) , evalua ting “whe ther, afte r viewing the evidenc e in the light most fa vorable to the prosec ution, any rational trier of fac t could have found the essential elements of the crime bey ond

a rea sonable doubt,” Jack son v. V i r g i nia , 443 U.S. 307, 319 (1979). This court “dra w[s] all available infere nces and resolve[s] all issues of cre dibilit y in favor of the jury ’s verdic t.” United States v. Salgado , 250 F.3d 438, 44 6 (6t h Cir. 2001). I n this way , we do not weig h evidenc e or

assess witness cre dibilit y . Matthews v. Abramaj tys , 319 F.3d 780, 788 (6th Cir. 2003) (“I t is the - 17 -No. 11-2600

United States v. Oue draogo province of the fac tfinder to weig h the probative value of the evidenc e and resolve any conflicts in testimony .”) (citing Neal v. Morris , 972 F.2d 675, 679 (6th Cir. 1992)). Substantial and competent circ umstantial evidenc e may support a v er d i ct. Talley , 194 F.3d at 765 (citing United States v. Keeton , 101 F.3d 48, 52 ( 6th Cir. 1996). Although the evidenc e nee d not eliminate all rea sonable hy pot h eses except that of g uilt, we must g uard ag ainst “piling infere nce upon infere nce.” United States v. Sliwo , 620 F.3d 630, 635, 638 ( 6th Cir. 2010) (citation omitted). 1. Conspiracy

Convictions To prove a

conspirac y , the g overnme nt had t o show: “(1) the ex istence of an ag ree ment to violate the law; (2) knowledg e and intent to join the conspirac y ; and (3) an overt act constituting actua l participa tion in the conspirac y .” United State s v . B la ckwe ll , 459 F.3d 739, 760 (6th Cir. 2006). “I t is not ne cessa

ry to pr ove a formal ag ree ment; ‘a tacit or materia l understanding

. . . is sufficie nt to show a conspiracy .’” Un i t ed Stat es v. Jordan , Nos. 11-6143, 11-6084, 2013 WL 163969, at *7 (6th Cir. 2013) (citing United States v. Pearce , 912 F.2d 159, 1 6 1 (6 t h Cir. 1990)). J ust as the exis tence of a conspirac y “may be inferr ed from circ umstantial evidenc e, a defe ndant’s knowledg e of and participa tion in a conspirac y also may be inferr ed from his conduct and est ab l i s h ed by circ u mstantial evidenc e.” United States v. Conatser , 514 F.3d 508, 518 (6th Cir. 2008). This participa tion “nee d only be sl ight.” Id. (citing United St ates v. A ve r y , 128 F.3d 966, 971 (6th Cir. 1997)).

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United States v. Oue draogo
The g overnme nt interlac ed the kidnapping and bank fr aud conspirac ies, theorizing that kidnapping Dietz wa s one way to e nsure that (1) the defe ndants could g et awa y with the fra

ud and (2) obtain the ne cessa

ry identification informa tion to effec tuate the f raudule nt money

transfe rs.

a. B ank F raud Conspirac y , 18 U.S.C. §§ 1344(2) and 1349

Wit h the bank fra

ud conspirac y char g es, the underly ing violation e ntails: (1) the def endant knowing ly executed or attempted to execute a scheme to defr aud a financ ial instit ution ( 2) insured by the FDI C, (3) with the intent to defr aud. See United States v. Munar , 419 F. App’x 600, 604-05 (6th Cir. 2011) (citing United States v. Eve rett , 270 F.3d 986, 989 (6th Cir. 2001)). Ample evidenc e showed that Oue draog o and Saba c onspired to steal Die tz’s L CMU funds.

The s h ee r volume of phone calls betwee n the defe ndants in 2007 sug g ests a shift in their rela tionship, consistent with a burg eoning conspirac y . The number of calls betwee n them doubled, and they trave led to meet at least six times, with Ouedr aog o’s visits corr esponding to key moments of the conspirac y . Be l y i n g Ou edra og o’s claim that this communication was nothing more than business as usual, afte r attempts to steal Dietz’s money failed, the fre quency of phone calls reduc ed signific antly (R. 735-4, Ex

. SSS at 1) (showing 179 calls in September but only 15 in November )). Casting a shadow of suspicion over these interac tions, the g overnme nt points to defe ndants’ “conc erte d eff

orts to keep secr et a number of their activities.” One such eff ort i n v o l v es Saba’s trac fone purcha se, which thwarte d trac king of conspirac y -re lated phone calls. Ouedr aog o cover ed

- 19 -No. 11-2600

United States v. Ouedraogo his tracks by using Saba’s SIM card, obscuring Ouedraogo’s identity by linking those calls to Saba’s account. These SIM calls usually preceded or followed key tracfone calls including calls to LMCU, utility companies, and the victim’s brother consistent with Saba updating Ouedraogo on the plan’s progress. Ouedraogo stopped using the SIM phone after Saba’s December 13, 2007 arrest. ( See R. 735-3, Ex. RRR at 19-20 (defendants call each other three times prior to tracfone purchase; 16 minutes after purchase, and after tracfone activated); R. 736-3, Ex. 121 at 1 (Saba calls LMCU and then, two minutes later, calls Ouedraogo); R. 737-3, Ex. 135A, 719-Call Records at 1-4 (last 719-call day occurs day before Saba’s arrest); R. 671, Gov. Resp. Rule 29 Mot. at 16-18 (summarizing mirroring of calls with tracfone and communication with Ouedraogo).) More importantly, the evidence connects Ouedraogo to each of Saba’s steps in furthering the bank fraud conspiracy. Though it was Saba who placed tracfone calls to LMCU, the utility companies, and Dietz’s brother, calls to Ouedraogo followed in quick succession. Yes, it was Saba who ordered the pepper spray and stun gun, but he did so shortly after several calls to Ouedraogo. Ouedraogo also had the contact information for Ng in his computer, and we know from the record that Saba shipped the stun gun to Ng’s address in a different state because shipping directly to Michigan was out of the question. The evidence also suggests that, soon after LMCU employees told Saba he needed to send a handwritten, notarized request for the account transfer, Ouedraogo made a trip to Brooklyn to obtain the notary’s signature. During this trip, Ouedraogo’s phone calls placed him in the immediate vicinity of the notary whose forged signature appears in Saba’s computer, corresponding to the second transfer-request letter to LMCU. The record also tells us that, - 20 -No. 11-2600

United States v. Ouedraogo soon after the conspiracy began to unravel (Gene Dietz all but accused the Dietz-impersonator on the phone of being a murderer), Saba took out another life insurance policy listing Ouedraogo as a 20% beneficiary. The policy, at once unnecessary and beyond his budget, logically supports the government’s interpretation: that it was Saba’s way of guaranteeing Ouedraogo’s share of the fraud’s spoils. Saba’s eagerness to talk to Ouedraogo following arrest, too, suggests a coordinated effort. Not only was Ouedraogo the very first person Saba called from jail, but Saba also arranged for Sarah Saba to bring Ouedraogo up to speed on the circumstances of his arrest. These are important links that the district court and Ouedraogo discount or diminish, misconstruing the government’s case as myopically centered on Saba. Ouedraogo dismisses this evidence, arguing that: (1) the calls reflect bad timing rather than malicious intent; (2) Saba gave Ouedraogo his SIM card, not to hide their communications but to help Ouedraogo reduce his phone bill; (3) it was coincidence that Ouedraogo visited Saba during 1 the time Dietz disappeared; and (4) he and Saba got lost for several hours looking for his second hotel, located four miles down the road from his first one. This view of the evidence overlooks Ouedraogo’s obfuscating answers to investigators’ questions failing to mention two of his visits

But Ouedraogo’s phone bill actually increased after acquiring the SIM card. ( Compare R. 1 735-1, Ex. H at 1 (July/August Coverage Charges , pre-SIM phone, $90.22), with R.738-1, Ex. 136B at 1 (August/September Coverage, post-SIM phone, $161.43) and R. 738-2, Ex. 136C (October Coverage, $103.17).) - 21 -No. 11-2600

United States v. Ouedraogo to Grand Rapids and the July trip to Ohio, and denying venturing into Saranac even though cell tower data proved otherwise. Though possible, the defense’s theory of the case was not plausible, and a jury could reasonably reject it. From this evidence, the government argues that “[s]ecrecy and concealment are essential features of successful conspiracy . . . [and therefore] the law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it.” Blumenthal v. United States , 332 U.S. 539, 557 (1947); see also Sliwo , 620 F.3d at 641-42 (Katz, J., dissenting). We add that “it is enough that the government present evidence that, if believed, proved that the defendant knew of the conspiracy’s general scope and sought its common end.” United States v. Little , 173 F.3d 857 (6th Cir. 1999) (table) (quotation and alteration omitted). On this record, a rational factfinder could conclude that Ouedraogo knowingly joined the bank fraud conspiracy. See United States v. Warshak , 631 F.3d 266, 310 (6th Cir. 2010) (finding sufficient evidence based on defendant’s presence at meetings where conspiracy discussions took place, and trust-relationship with one of the conspirators). The jury reasonably relied on this evidence to find Ouedraogo guilty of conspiracy. It weighed the evidence and assessed the government’s theory, concluding as Saba’s jury concluded that the evidence pointed to a two-person conspiracy, the illegal object of which was to steal $450,000 from a reclusive retiree’s savings account.

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United States v. Ouedraogo

b. Conspiracy to Commit Kidnapping, 18 U.S.C. § 1201(c) The second conspiracy charge includes the following elements: (1) the defendant knowingly and willfully kidnapped, abducted, seized, or confined another person; (2) for ransom, reward, or other benefit; and (3) traveled in interstate commerce or willfully used an instrumentality of

commerce. United States v. Brika , 487 F.3d 450, 456 (6th Cir. 2007); see also United States v. Dixon , 592 F.2d 329, 340 (6th Cir. 1979)). The government’s evidence supported this charge as well. As with the fraud conspiracy, the government’s case encompassed a host of well-timed phone calls, and other closely coordinated acts, that reflected a common plan or scheme. Ouedraogo downplays the importance of these phone calls in particular those immediately preceding or following Saba’s communication with the LMCU, utility providers, and Gene Dietz arguing that the government should have provided evidence of the content of these calls. We regularly rely on cell phone records as part of a criminal case, even in the absence of of the conversation’s content. United States v. Spires , No. 12-3229/3230, 2013 WL 468827, at *1 (6th Cir. Feb. 8, 2013) (upholding a drug-distribution charge where the “frequent calls to and by [defendant] occurred immediately before several drug transactions completed by his coconspirators”); United States v. Dhaliwal , 464 F. App’x 498, 512 (6th Cir. 2012) (affirming conspiracy conviction where defendant and alleged coconspirator exchanged phone calls immediately before key conspiratorial events).

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United States v. Oue draogo
The timing of these calls connec ts Ouedr aog o to S ab a’ s p u rc h ase of two cans of pepper spray . I n the wee k prec eding Saba’s pepper -spra y purcha se, Ouedr aog o went to Gra nd Rapids and t h e t wo trave led to Ohio. The Ohio trip took less than a day , sug g esting a specifi c d es i gn . Suspiciously , the t rip beg an and ended with Saba usi ng his computer to access the Moraine, Ohio addre ss for Aar on I mports, the same self-de fense supply store S ab a at t em pted to contac t befor e order ing the pepper spray . Given the failed attempt to loc ate Aar on’s phy sical location, Saba later place d an online order for a stun g un, scheduling delivery to an Ohio addre ss, as evidenc ed on Ouedr aog o’s computer

. After linking Ouedr aog o to the stun g un and pepper spray , t h e g overnme nt prese nted the

merc hant’s testimony reg arding the products’ incapa citating capa biliti es. (R. 542, TTR at 942-944 (testify ing t h at the g un could leave a person fee ling “fa tigue d and wea k”); id. at 912-13 (listing eff ec t s o f p epper spray , including “sensa tional burning ” and limit ing all but “life support brea thing” ).) I

n conspirac y

case s, where direc t evidence of intent is sc arc e, this c ourt may look to circ umstantial evidenc e in order to draw conclusions about intent. See, e.g. , United States v. Pelfrey , 822 F.2d 628, 632 (6th Cir. 1987) (re asoning that “whe re t h e o ff en s e char g ed is so inhere ntly

secr etive in nature as to permit marshalling of only circ umstantial evidenc e,” this kind of “infe rential proof may be controlling ”); United States v. Christ ian , 786 F.2d 203, 211 (6th Cir. 1986) (“A [conspiracy ] defe ndant’s g uilty knowledg e . . . may be inferr ed from surrounding circ umstances.” ). Ouedr aog o’s connect i o n to Saba’s acquisition of two wea pons of incapa citation supplies this circ umstantial evidence

. - 24 -No. 11-2600

United States v. Ouedraogo The evidence further implicated Ouedraogo both before and during the two-day period when Dietz disappeared. Not only was Ouedraogo in the right place at the right time and with the right person but he actively sought to conceal his presence in Grand Rapids from Saba’s wife (R. 585, TTR at 2188-89, 2192), despite a compelling reason to visit the Saba home: the recent birth of Saba’s daughter, Ouedraogo’s goddaughter. Likewise, Ouedraogo told authorities he and Saba never ventured into Saranac during this trip, yet telephone records show Saba made a phone call from a cell tower in Saranac during a time Ouedraogo claimed to be with Saba ( id . at 2167-69). This was also when Saba gave Ouedraogo the SIM card ( id . at 2227), supporting the government’s inference that the two men tried to thwart any tracking of their communication. With this evidence in mind clandestine visit to Grand Rapids and Saranac, dereliction of godfather duties, and unverified account of his whereabouts for most of the September trip the jury could reasonably conclude that Ouedraogo formed part of a conspiracy to kidnap and defraud Dietz. See Salgado , 250 F.3d at 447 (concluding jury could infer knowledge and intent about drug conspiracy from defendant’s evasive statements to authorities and suspicious circumstances surrounding trip to key conspiratorial location). Today’s decision aligns with this circuit’s previous sufficiency-of-the-evidence holdings. Recently, in Davis v. Lafler , the en banc court affirmed the district court’s denial of habeas, finding sufficient evidence to support the defendant’s conviction for aiding and abetting a carjacking. 658 F.3d 525, 534 (6th Cir. 2011) (observing “a defendant who challenges the sufficiency of the evidence

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United States v. Oue draogo

to sustain his conviction fac es a near ly insurmountable h u rd l e”) (quotation marks and brac kets omitted). I n that case , the prosec ution alleg ed Davis acte d as a lookout while his friend stole a car from a restaur ant parking lot. Sustaining the conviction, the court emphasized that Davis arr ived at the sce ne with the ca

rjac ker, ling ere d in the restaur ant wit hout order ing a ny food, and stood at the window as if waiting for a crime to unfold. Be cause “Davis would have no had no other way of so closely coordina ting his actions wit h those of [ the carjack er ] i f he had not been actively watching what was taking place ,” the evidenc e supported his g uilt. Davis , 658 F.3d at 532. Thoug h nothing i n t h e record specifically tied Davis t o the underly ing crime, his actions preceding the carjac king,

as well as “the lack of any proof to ref ute the circ umstantial evidenc e that Davis and [t he car jacke r]

wer e previously acqua inted,” id. at 533, supplied sufficie nt evidenc e to convict. The same may be said for the kidnapping and bank f raud sc hemes in the pre sent ca se. 2. Substantive Kidnapping Resulting-in-D eath

The g overnme nt’s evidenc e, though s ufficie nt to show a plan and actions in further ance , stops short of proving that Ouedr aog o actua lly car ried o u t t hat plan. Unlike a conspirac y char g e, which require s an overt act and intent to commit the underly ing offe nse, the substantive kidnapping count require d evidenc e that Ouedr aog o: (1) knowing ly and willfully kidnapped, abducte d, seized, or confined Dietz ; (2) held him for ransom, rew ard, or other b en ef i t ; and (3) trave led i n interstate

commerc e or willfully used an instrumentality o f co m merc e. Brika , 487 F.3d at 456; see also Di xo n , 5 9 2 F.2d at 340. Not only this, but the g overnme nt also had to prove that the kid n ap p i n g
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United States v. Oue draogo
either direc tly or proxi mately cause d Dietz’s death. 18 U. S

. C

. § 1201(a) ; see United States v. Montgomery , 635 F.3d 1074, 1087 (8th Cir. 2011) (“[T]he statute require s ‘only that the death of any person results’ in th e course of t he kidnapping.”) (citations om itted); United St ates v. T aylor , No. 1:04-CR-160, 2006 WL 3489043, at *3 (E.D. T enn. De c. 4, 2006).

The g overnme nt stitched toge ther the following fac ts to d e mo n s tr a te k id n a p p in g resulting -indeath: (1) Ouedr aog o an d Saba conspired to kidnap Dietz, a rea sonable conclusion based on circ umstantial evidenc e of Ouedr aog o’s repe ated communications and close cooper ation with Saba; (2) the evidenc e shows that Dietz disappea red bet we en September 11 and 13, at a time when Ouedr aog o was visiti ng Saba in the Gra nd Rapids are a; (3) the parties ag ree that Dietz is dead; and (4) Fr anklin Ash rela ted Saba’s statements involving a “par tner” and a botched plan involving a stun g un, pepper spray , tape, and a van used to dispose of a body

. Thoug h backing eac h of the proposed infere nces, the evidenc e falls short of the ultimate conclusion: that the defe ndants did more than plot, they car ried out their sc heme a

nd killed Dietz in t he proc ess.

Even Ash’s testimony , arg uably the most probative evidenc e of Dietz’s death in connec tion with a kidnapping , falls short of sustaining the g overnme nt’s char g es aga inst Ouedr aog o. Plott ing and car ry ing out a scheme such as kidnapping are two separ ate matters, as the g overnme nt’s proofs illust rate
. The g overnme nt’s points add up to a rea sonable infere nce that Ouedr aog o was the partne r involved in the conspiracy to kidnap Dietz

. C o n s p i cu o u s l y absent, however, is any evidenc e that

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United States v. Ouedraogo Ouedraogo participated in the actual kidnapping and, more so, that the kidnapping proximately caused Dietz’s death. As the district court correctly observed, this case remains without a body, without a crime scene, or physical evidence of a homicide. The proofs do not tell us that there was an actual kidnapping, when and where it occurred, how long defendants may have held Dietz before he died, or how he died. Even now, the government still fails to present a complete or mostly complete account of when or how Dietz died. As we noted in Newman v. Metrish , “where the evidence taken in the light most favorable to the prosecution creates only a reasonable speculation that a defendant was present at the crime,” the charges cannot survive a sufficiency challenge. 543 F.3d 793, 797 (6th Cir. 2008). In this case, not only must we speculate as to Ouedraogo’s presence at the scene of Dietz’s death, but we must draw up this scene from scratch, the evidence providing a blank slate. We must, therefore, agree with the district court’s assessment and affirm its acquittal on the substantive kidnapping resulting-in-death count.

B. New Trial Having considered the evidence sufficient to support the jury’s verdict on the conspiracy charges, we now turn to the district court’s alternative form of relief: the new trial order. Reviewing 2

Because we agree that the government’s evidence on the substantive kidnapping count fell 2 short a merits-based, rather than procedural conclusion the appropriate remedy is acquittal, not retrial. See Burks v. United States , 437 U.S. 1, 18 (1978). - 28 -No. 11-2600

United States v. Ouedraogo this judgment for “clear and manifest abuse of discretion,” United States v. Hughes , 505 F.3d 578, 593 (6th Cir. 2007), we reverse only upon a “definite and firm conviction that the trial court committed a clear error of judgment,” such as “rel[ying] on clearly erroneous findings of fact, or . . . improperly appl[ying] the law[.]” Tompkin v. Philip Morris USA, Inc. , 362 F.3d 882, 891 (6th Cir. 2004). To the extent that the new-trial order hinges on the court’s post-trial exclusion of Ash’s testimony, we evaluate this determination for abuse-of-discretion as well, United States v. Price , 134 F.3d 340, 348 (6th Cir. 1998), conducting a harmless error analysis over the challenged proofs, United States v. Trujillo , 376 F.3d 593, 611 (6th Cir. 2004). A district court may order a new trial “in the extraordinary circumstances where the evidence preponderates heavily against the verdict.” Hughes , 505 F.3d at 593. In making its assessment, the trial court may evaluate the “credibility of the witnesses and the weight of the evidence” to protect against a “miscarriage of justice.” United States v. Lutz , 154 F.3d 581, 589 (6th Cir. 1998). Granting Ouedraogo’s motion for a new trial, the district court observed: (1) the jury’s verdict was against the manifest weight of the evidence, and (2) Ash’s testimony relating to Saba’s “quasi-confession” should not have been admitted. (R. 705, Op. at 27-28.) The government appeals this decision and, were we to affirm the new-trial order, it asks for reassignment to a new judge. The district court evidently took the position repeating its reasons for granting Ouedraogo’s Rule 29 motion that the government’s proofs required unreasonable inferences, inadequately supported by the record. This rationale, however, overlooks, or improperly discounts, much of the

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United States v. Oue draogo
evidenc e discussed above. Taking advanta g e of its fre edom to assess witness cre dibilit y , the court framed Ash’s testimony as “totally incre dulous,” and conclude d that, without it, the go v ernme nt lacke d any evidenc e connec ting Ouedr aog o to Saba’s illeg al ac tions. The g overnme nt r eplies that this constitutes a clea

r err or of fac t. We ag ree . As our revie w of the evidenc e d em o n s t rates, the g overnme nt prese nted sufficie nt circ umstantial links betwee n Ouedr aog o and the fra ud and kidnapping conspirac ies, eve n without Ash’s testimony

.
We turn, then, t o t h e co u rt’s second rea son for g ranting a new trial. Fe dera l Rule of Evidence 804(b)( 3) provides an exception to the hear say bar when a decla rant (her e, Saba) provides self-inc riminating statements that are “supported by corr oborating circ umstances,” indicating their t rust worthiness. Thus, as the court corr ectly pointed out, to admit Ash’s testimony under Rule 804(b)( 3), Sa b a’ s s t atements had to be (1) ag ainst his penal interest, and (2) trustworthy , i.e.,

corr oborate d in some way . (R. 705, Op. at 29-30.)

I nitially admitting Ash’s testimony , the trial court observe d that the evidenc e established “a sufficie nt[ ly ] close rela

tionship betwee n [Ash and Saba] to support the reliability , the believability , the corr oboration of the testimony that [S aba] told [Ash] that there was a plan, that it we nt too far ,

. . . and that he had a partne r.” (R. 586, TTR at 2361.) L ikewise, it found that Ash’s testimony was “cle arly ag ainst Mr. Saba’s penal interest, particula rly with reg ard to the conspirac y char g es.” ( Id .) After the verdic t, the court reve rsed course , concluding that the testimony “wa s d es i gned to meet [Ash’s] own purposes . . . to complete his obliga tion to testify with m i nimal commitment and

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United States v. Oue draogo

repe rcussions” and that “[i] t is unlikely that any bond ever exis ted betwee n Ash and Saba.” (R. 705, Op. at 32-33.)

I n response , the g overnme nt points out, “the cre dibilit y of the witness who re l at es t he [hearsay ] s t at em ent is not a proper fac tor for the court to consider in assessing corr oborating circ umstances.” Fe d. R. Evid. 804(b)( 3) advisory committee note. Apply ing United S t a t es v. Johnson , 581 F.3d 320, 327 ( 6th Cir. 2009), t he gover nment asser

ts that: (1) the “close ness of the rela tionship betwee n [S aba] and [Ash] ”; (2) the “truly self-inc ulpatory ” nature of the statements; and (3) the lack of persona l g ain from testify ing, all support admission. To be sure, the g overnme nt did provide some evidenc e sug g esting Ash and Saba’s rela tionship shifted from enemies to “conf idants” afte r Ash war

ned Saba about jailhouse “snit ch es . ” (R. 586, TTR at 2371-72.) This backg round, howeve r, cannot overc ome the residual doub t s s u rrounding Ash’s statements, which, the witness himself admitted, could have been influence d by other case materia ls, and ultimately lacke d external support. I n particula

r, Ash admitted that he knew of Donald Dietz and was a littl e upset about being assig ned to the same cell as the man char g ed with his disappea ranc e. Ash took an interest in the case and followed the acc ounts of t h e i n v est iga tion in the local newspa

per. He also had acc ess to and revie wed the indictment ag ainst Saba. He acknow ledg ed that he rea d about the case in other source s, in addition to S aba’ s (alleg edly destroy ed) third- party

confe ssion. Finding no abuse of discretion in t h i s ev i d ence ban, we now turn to the g overnme nt’s harmlessne ss arg ument. An err or is harmless unless it is “more probable than not that th e err or
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United States v. Ouedraogo materially affected the verdict.” United States v. Hernandez , 227 F.3d 686, 696 (6th Cir. 2000). Ash’s testimony was strictly limited to two subjects: the existence of a “plan” and Saba’s call to a “partner” after the two Dietz checks bounced. This testimony, which merely tied together thedocumentary evidence the government presented at trial, was also subjected to thorough crossexamination. (R. 586, TTR at 2380-90 (cross-examination), 2395-99 (further cross-examination); 2401-02 (further recross-examination).) Cf. Hernandez , 227 F.3d at 696 (citing both the fact that the witness “introduced essentially nothing new to the case” and was “extensively cross-examined” as supporting conclusion that evidentiary error was harmless). Moreover, Ash’s statements did not directly implicate Ouedraogo though they did reinforce the conspiracy and partnership aspects of the case so it is unlikely that the jury’s guilty verdict materially rested on his testimony. In light of the substantial evidence establishing a connection between Ouedraogo and the bank fraud and kidnapping schemes, Ash’s testimony did not “materially affect[] the verdict.” Id. Concluding that the district court abused its discretion in granting the alternative relief of a new trial, we reinstate the jury verdict on the conspiracy counts. Accordingly, we also deny the government’s reassignment request as moot.

III. We AFFIRM the acquittal on the substantive kidnapping resulting-in-death count, but REVERSE the district court’s acquittal and new-trial grant on both conspiracy counts. We REMAND for reinstatement of those convictions and sentencing.

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United States v. Oue draogo

ALAN E . NORRIS, Circuit Ju dge, dissentin g in part a n d con curring i n part. As the district court re cog nized, the standard that a cr iminal defenda nt must m eet in orde r to preva il on a post-trial motion for a j u d gm en t of acquittal is onerous. “I f any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt,” we must aff irm the judgme nt of the jury

. Jack

son v. Virginia , 443 U.S. 307, 319 (1979). “[W ] e do not weig h the evidenc e, consider the cre dibilit y of witnesses or substitut e our judgme nt f or that of the jury .” United States v. Hilliard , 11 F.3d 618, 620 ( 6th Cir. 1993).

The m aj o ri t y d o es a thoroug h job in mustering the evidenc e that it believes supports the reinstateme nt of the conspirac y counts. I do not take issue with any of the fac ts prese nted by the majority

. I simply disag ree that they add up to the quantum of evidenc e require d to support a finding of g uilt bey ond a re asonable doubt. First, the case ag ainst Mr. Ouedr aog o is completely circ umstantial. Of c o u r s e , circ umstantial evidenc e standing alone can sustain a g uilty verdic t. United States v. Parkes , 668 F.3d 295, 302 (6th Cir. 2012); United States v. Clark , 634 F.3d 874, 876 (6th Cir. 2 0 1 1 ). As this court has noted, howeve r, “cha

rg es of conspirac y are not to be made out by piling infere nce upon infere nce.” United States v. Sli wo , 620 F.3d 630, 638 (6th Cir. 2010) (quoting Direct Sales Co. v. United States , 319 U.S. 703, 711 (1943))

. Wit h respe ct to the bank fra ud conspirac y conviction, the majority believes that “[t] he sheer volume of phone calls betwee n the defe ndants in 2007 sug g ests a shift in their rela tionship, consistent with a burg eoning conspirac y .” Perhaps, but tha t c onclusion strikes me as
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United States v. Ouedraogo a stretch. Mr. Ouedraogo and his co-defendant Rami Saba spent more time on the telephone in June 2006 than during the month of the alleged kidnapping of Mr. Dietz. United States v. Ouedraogo , 837 F. Supp. 2d 720, 734 (W.D. Mich. 2011) (citing exhibits). It is undisputed that the men were exceedingly close, which makes the waxing and waning of telephone exchanges not particularly probative of criminal conduct. As the district court observed, “Given defendants’ undisputed close relationship and [the] frequency of their calls, nothing incriminating can reasonably be inferred from the mere timing and pattern of calls with Ouedraogo over the course of Saba’s use of the Tracfone.” Id. at 735. Another instance of circumstantial evidence that loses its steam under close scrutiny is Mr. Ouedraogo’s visit to Brooklyn, allegedly to obtain the signature of a notary. The majority fails to mention that the notary herself testified that she had never met Mr. Ouedraogo. Id. at 736. In short, while the evidence produced at trial reveals suspicious activity when looked at through the lens offered by the government, it falls short of proving guilt beyond a reasonable doubt. Second, I think that a comment about the timing of the two trials is in order to understand why the belated grant of defendant’s motion for a judgment of acquittal resonates with me. For whatever reason, Mr. Ouedraogo who everyone concedes was the less culpable of the two defendants was tried first. Yet, “[t]he government proofs . . . were all about Saba.” Id. at 729. In the view of the district court, the government “employed a ruthless repetition of unconnected facts in the effort to persuade the jury of Ouedraogo’s participation.” Id. I agree with this assessment. Given its grant of defendant’s motion, it is obvious that, had the district court the opportunity to revisit the matter, it would not have submitted Mr. Ouedraogo’s case to the jury. Furthermore, I am - 34 -No. 11-2600

United States v. Oue draogo
convince d that, had the court presided over Mr. Saba’s trial first, it would have ruled differ ently at trial. For one, Mr. Ash’s testi m o ny , which strikes me, as it now does the district court, as improvidently allowed, would have been seen b y t h e d istrict court in a second trial for what it is: entitled to no weig ht. The district court puts it this way : “I t beca me patently clea

r to the Court afte r his succe ssive trial testimony that Ash’s testimony conce rning the alleg ed handwr itten statement by Saba is not cre ditworthy in any respe ct and is entitled to absolutely no weig ht in this case .” Id. at 740 (empha sis added)

. I n short, the district court chang ed its view of the cre ditworthiness of the testimony as it prog resse d throug h the two trials. I t seems to me wrong as a matter of justice to deny Mr. Ouedr aog o the benef it of this incre asing awa

rene ss simply beca

use he was tried first. Yes, the jury ’s verdic t is entitled to g rea t defe renc e, but in this unusual case in which the same district judge observe d two near ly identical trials, I am inclined to err on the side of caution and hold, as she did, that the g overnme nt failed to establish def endant’ s g uilt bey ond a re asonable doubt.

I there fore dissent from the majority ’s dec ision to reverse the g rant of the motion to acquit with respe ct to the conspirac y counts an d co n cu r in its resolution of the substantive kidnapping count.

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