11-283-cr United States v. Kaba 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P** **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 11 th** **day of September, two thousand twelve.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **SUSAN L. CARNEY,** 8 **Circuit Judge** 9 **JOHN GLEESON,** 10 **District Judge .**  * 11 12 13 - - - - - - - - - - - - - - - - - - - -X 14 **United States,** 15 **Appellee ,**  16 17 **-v.- 11-283-cr** 18 19 **Tamba Kaba** 20 **Defendant-Appellant .**  21 - - - - - - - - - - - - - - - - - - - -X 22 23 **FOR DEFENDANT-APPELLANT:** Lenny Franco, The Franco Law 24 Firm PC, Atlanta, GA. 25 26 **FOR UNITED STATES** : Peter A. Norling and Amy Busa, 27 Assistant United States 28 Attorneys, forLoretta E. Lynch, 29

* The Honorable John Gleeson, United States District Judge for the Eastern District of New York, sitting by designation. 1United States Attorney for the 1 Eastern District of New York, 2 Brooklyn, N.Y. 3 4 Appeal from a judgment of the United States District 5 Court for the Eastern District of New York (Johnson, J. ). 6
7 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 8
**AND DECREED**that judgment of the district court is **AFFIRMED**
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10 Defendant Tamba Kaba was convicted of two counts of 11 smuggling elephant ivory and one count of selling elephant 12 ivory, 18 U.S.C. § 545; 16 U.S.C. § 3372(a)(1), and was 13 sentenced to three concurrent terms of 33 months’ 14 incarceration, three years of supervised release, forfeiture 15 of $73,000, a $25,000 fine, and a $300 special assessment. 16 We assume the parties’ familiarity with the underlying 17 facts, the procedural history of the case, and the issues on 18 appeal. 19 **[1]** Kaba argues that insufficient evidence established that 20 he knew he was importing elephant ivory and that he knew 21 that importing elephant ivory is illegal. Because these 22 challenges bear only on his smuggling conviction, we affirm 23 Kaba’s conviction for selling elephant ivory. 24

2A defendant challenging the sufficiency of the evidence 1 takes up a “heavy burden,” United States v. Gaskin , 364 F.3d 2 438, 459 (2d Cir. 2004) (internal quotation marks omitted), 3 because the standard of review is “exceedingly deferential,” 4 United States v. Hassan , 578 F.3d 108, 126 (2d Cir. 2008). 5 A conviction must be affirmed against a challenge to the 6 sufficiency of the evidence if “ any rational trier of fact 7 could have found the essential elements of the crime beyond 8 a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 9 (1979). In evaluating evidence sufficiency, “we must view 10 the evidence in the light most favorable to the government, 11 crediting every inference that could have been drawn in the 12 government’s favor and deferring to the jury’s assessment of 13 witness credibility and its assessment of the weight of the 14 evidence.” United States v. Chavez , 549 F.3d 119, 124 (2d 15 Cir. 2008) (internal citations, brackets, and quotation 16 marks omitted). 17 Sufficient trial evidence supported Kaba’s smuggling 18 conviction. He was in Africa when the ivory was shipped 19 from Africa to the United States. Kaba paid the shipping 20 costs associated with both shipments, hired a freight21 forwarder to pick up the shipments at the airport, and Kaba 22 then transported those shipments to a storage facility in 23 trucks he rented. The packing material in which one 24 3shipment of ivory was encased was found in the dumpster 1 outside the facility. Later, Kaba sold a piece of ivory 2 from one of the shipments to Dr. Jarra, who wrote on the 3 check used to pay for the piece that the check was for the 4 “ivory balance.” That check was deposited into Kaba’s 5
account. 6 Kaba’s primary argument is that the evidence is 7 insufficient because there is no direct evidence that Kaba 8 knew that the shipments contained ivory. But, “knowledge 9 and intent can . . . be proved through circumstantial 10 evidence and the reasonable inferences drawn therefrom,” 11 United States v. MacPherson , 424 F.3d 183, 189 (2d Cir. 12 2005) (collecting cases), and, here, reasonable inferences 13 drawn from the evidence establish that Kaba knew the 14 shipments contained ivory. 15 There was also sufficient evidence that Kaba knew that 16 importing ivory was illegal. Kaba conceded during his 17 testimony that he had “‘heard from people’” that “‘you 18 cannot import ivory into the United States.’” Gov’t Br. at 19 7 (quoting T:384). In addition, the packaging of the ivory 20 pieces--hidden in hollowed-out compartments of statues--is 21 strong evidence that Kaba (as importer) knew the ivory was 22 being imported illegally. 23

4**[2]** Kaba challenges his sentence on the ground that his 1 trial counsel provided ineffective assistance by failing to 2 review the pre-sentence report (“PSR”) with Kaba, who claims 3 he does not read English and thus could not read the PSR. 4 To prevail on a claim of ineffective assistance of counsel, 5 a defendant must demonstrate, first, “that counsel’s 6 performance was deficient,” that is, the attorney made 7 errors so serious that the representation “fell below an 8 objective standard of reasonableness,” and, second, that 9 there was prejudice--i.e. , a reasonable probability that, 10 absent counsel’s errors, the outcome of the proceeding would 11 have been different. Strickland v. Washington , 466 U.S. 12 668, 687-88, 695 (1984); accordKimmelman v. Morrison , 477 13 U.S. 365, 375 (1986). 14 Kaba cannot show prejudice. He asserts that if he had 15 received adequate counsel he would have objected to the two16 level enhancement for commission of the offense for 17 pecuniary gain because he did not profit from the single 18 sale of ivory for which he was convicted. But the 19 enhancement does not require Kaba to realize a profit in the 20 transactions. It applies “[i]f the offense . . . was 21 committed forpecuniary gain or otherwise involved a 22 commercial purpose.” U.S.S.G. § 2Q2.1(b)(1) (emphasis 23

5added). “‘For pecuniary gain’ means for the receipt of, or 1 in anticipation of receipt of, anything of value, whether 2 monetary or in goods or services.” U.S.S.G. § 2Q2.1, cmt. 3 n.1. Actual profit and profitability are beside the point. 4 The reference to “anticipat[ed]” receipt of “anything of 5 value” confirms that the enhancement applies whenever the 6 defendant anticipatesa profit or anything of value. 7 Accordingly, Kaba’s sale of the ivory--even if he did not 8 turn a profit--supports the two-level enhancement of his 9
sentence. 1 10
11 We have considered all of the additional arguments and 12 find them to be without merit. Accordingly, the judgment of 13 the district court is **AFFIRMED**
. 14
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 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. SeeU.S.S.G. § 2Q2.1(b)(1)

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