                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                  FEB 19, 2010
                                 No. 09-13509                      JOHN LEY
                             Non-Argument Calendar                   CLERK
                           ________________________

                     D. C. Docket No. 09-00054-CR-1-RWS-1

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

FATOU DIALLO SUBERU,

                                                              Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                (February 19, 2010)

Before TJOFLAT, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

      A Northern District of Georgia jury convicted Fatou Diallo Suberu of

conspiring knowingly to harbor aliens, in violation of 8 U.S.C. §§
1324(a)(1)(A)(iii), (a)(1)(A)(v)(I), and (a)(1)(B)(i), and the district court sentenced

her to prison for thirty months and imposed a $6,000 fine. She now appeals her

conviction, raising one issue: whether the evidence adduced at trial was sufficient

to convict. We conclude that it was and therefore affirm.

      The testimony at trial established that Suberu recruited Youssef Fofana and

Amanda McGhee to participate in a scheme to provide undocumented aliens with

illegal driver’s licenses. Fofana found undocumented aliens in need of

identification, and would then lead the aliens to the Georgia Department of

Driver’s Services South DeKalb Office (“DDS”), and instruct them to find

McGhee, a DDS employee, and say the name “Fatou,” after which McGhee would

provide them with an illegal driver’s license.

      In her brief on appeal, Suberu argues that the evidence presented at trial was

insufficient for a rational trier of fact to find beyond a reasonable doubt that she

was a member of the conspiracy. Specifically, Suberu argues that (1) the

testimony of the prosecution witnesses was insufficient to prove anything more

than the fact that her co-conspirator, Youssef Fofana, told undocumented aliens to

say her name, (2) the testimony of her alleged co-conspirators was inherently

incredible and should have been disregarded, and (3) the prosecution failed to

corroborate testimony regarding the profits that she allegedly received as a result of



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her participation in the conspiracy.

      We review de novo the sufficiency of the evidence to support a criminal

conviction. United States v. Khanani, 502 F.3d 1281, 1293 (11th Cir. 2007). In

reviewing the sufficiency of the evidence, we take all evidence and all reasonable

inferences therefrom in the light most favorable to the government to determine

whether a reasonable fact-finder could conclude that the evidence established the

defendant’s guilt beyond a reasonable doubt. Id.; United States v. Garner, 581

F.2d 481, 485 (5th Cir. 1978). Since the jury is free to choose among reasonable

constructions of the evidence, we must accept the jury’s credibility determinations

and the inferences that could reasonably be drawn from the witnesses’ testimony.

Garner, 581 F.2d at 485. To meet its burden of proof beyond a reasonable doubt,

it is not necessary for the government to provide evidence that “exclude[s] every

reasonable hypothesis of innocence or [is] wholly inconsistent with every

conclusion except that of guilt.” United States v. Faust, 456 F.3d 1342, 1345 (11th

Cir. 2006).

      The government is required to prove each element of the charged offense

beyond a reasonable doubt. United States v. Rogers, 94 F.3d 1519, 1524 (11th Cir.

1996). The elements of criminal conspiracy are (1) an agreement between two or

more persons to commit a crime, (2) an overt act in furtherance of the agreement



                                          3
was performed by one of the conspirators, and (3) knowledge of, intent to join, and

participation in the conspiracy by each alleged conspirator. United States v.

Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006). A conspiracy to violate 8 U.S.C. §

1324(a) requires proof of a conspiracy to encourage or induce an alien to reside in

the United States, while knowingly or recklessly disregarding that the alien’s

residence in the United States was in violation of the law. Id. at 1297. The statute

includes a penalty section for violating § 1324(a)(1)(A)(i) or (v)(I) “for the purpose

of commercial advantage or private financial gain,” which requires a monetary

fine, imprisonment for a maximum of 10 years, or both. 8 U.S.C. §

1324(a)(1)(B)(i).

      “Conspiracy may be proven by circumstantial evidence and the extent of

participation in the conspiracy or extent of knowledge of details in the conspiracy

does not matter if proof shows the defendant knew the essential objective of the

conspiracy.” United States v. Gupta, 463 F.3d 1182, 1194 (11th Cir. 2006)

(internal quotations omitted). A challenge to the sufficiency of the evidence based

on a witness’s lack of credibility is unlikely to succeed since the credibility of a

witness is the sole province of the jury. United States v. Chancey, 715 F.2d 543,

546 (11th Cir. 1983). Thus, we will reverse a conviction based on a jury’s

credibility determinations only if the testimony credited by the jury “is so



                                            4
inherently incredible, so contrary to the teachings of basic human experience, so

completely at odds with ordinary common sense, that no reasonable person would

believe it beyond a reasonable doubt.” Id. at 546.

       Even where the government’s proof of a defendant’s knowledge of, and

participation in, a conspiracy depends heavily on the testimony of one or more co-

co-conspirators, the jury is free to find such testimony credible. United States v.

Milkintas, 470 F.3d 1339, 1344 (11th Cir. 2006). The uncorroborated testimony of

an accomplice is sufficient to support a conviction if it is not incredible or

unbelievable on its face. United States v. Cravero, 530 F.2d 666, 670 (5th Cir.

1976) (holding that, despite an accomplice’s reputation for lying and mental

instability, criminal history, and belief that his testimony would benefit him, his

testimony was sufficient evidence to support a conviction because he was not

testifying “to facts that he physically could not have possibly observed or events

that could not have occurred under the laws of nature.”).

       The evidence presented at trial was sufficient for a reasonable fact-finder to

conclude that Suberu was guilty of the crime charged beyond a reasonable doubt.

The district court therefore committed no error in denying her motion for judgment

of acquittal.

       However, the judgment in this case contains a clerical error. The judgment



                                            5
states that Suberu was found guilty under 8 U.S.C. §§ 1324(a)(1)(A)(iii),

1324(a)(1)(A)(v)(I) & 1324(a)(1)(B)(I). The final subsection should correctly read

“1324(a)(1)(B)(i).” Accordingly, although the underlying conviction is affirmed,

we remand the case to the district court to correct this error.

      AFFIRMED AND REMANDED WITH INSTRUCTIONS.




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