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

New York, on the 11th 4 day of September, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 SUSAN L. CARNEY,

9 Circuit Judge

10 JOHN GLEESON,

District Judge.* 11

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 freight22 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 two17 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

sentence.1 10

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