               Case: 11-16171        Date Filed: 02/25/2013      Page: 1 of 14

                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-16171
                               ________________________

                     D.C. Docket No. 1:09-cr-00241-WSD-ECS-11

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee.

                                            versus

CHARLES NDHLOVU,
a.k.a. Soul,


                                                                       Defendant-Appellant.



                               ________________________

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

                                     (February 25, 2013)



Before DUBINA, Chief Judge, BLACK and ALARCÓN, ∗ Circuit Judges.

PER CURIAM:
       ∗
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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       Appellant Charles Ndhlovu raises five issues on appeal. After careful

review of the record and the parties’ briefs, we affirm on all issues.

                                                I.

       Appellant first challenges the sufficiency of the evidence used to convict

him on Counts Two, Three, and Five of the second superseding indictment for

trafficking in counterfeit labels and felony copyright infringement.1 We review

sufficiency of the evidence challenges de novo. United States v. Bacon, 598 F.3d

772, 775 (11th Cir. 2010). The jury’s verdict is upheld unless, after viewing the

evidence in the light most favorable to the government, no reasonable juror could

have found guilt beyond a reasonable doubt. 2 Id.

A. Count Two: Trafficking in Counterfeit Labels

       Count Two charged Appellant with trafficking in counterfeit labels and

documentation, in violation of 18 U.S.C. § 2318(a) and (c)(3). Appellant contends

the evidence was insufficient because the Government failed to connect him with

the production or distribution of any counterfeit labels. Moreover, the FBI’s


       1
         Appellant was also charged with conspiracy to commit felony copyright infringement
(Count One), and felony copyright infringement for conduct pertaining to another location
during the 180-day period between June 2008 and December 2008 (Count Four). The district
court dismissed the conspiracy charge on the Government’s motion. The jury found Appellant
not guilty as to Count Four.
       2
         We note that the same standard of review applies to Appellant’s challenge to the district
court’s denial of his motion for judgment of acquittal. United States v. Gamory, 635 F.3d 480,
497 (11th Cir. 2011). For the reasons discussed below, the district court did not err in denying
Appellant’s Fed. R. Crim. P. 29 motion.


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fingerprint analysis failed to identify Appellant’s fingerprints on any of the seized

labels or paper inserts.

      To convict Appellant under Count Two as charged, the Government needed

to prove that he (1) knowingly trafficked (2) in labels, packaging, and other

documentation accompanying or designed to accompany a phonorecord or motion

picture, (3) which are counterfeit, and (4) that the sound recordings or motion

pictures to which the counterfeit labels were designed to be affixed were copyright

protected. See 18 U.S.C. § 2318(a) and (c)(3). Viewing the facts and

circumstantial evidence in the light most favorable to the Government, a

reasonable jury could find Appellant guilty on Count Two.

      First, a reasonable jury could conclude Appellant committed the actus reus

of the offense: trafficking in counterfeit labels and documentation for copyright-

protected works. In December 2007, police videotaped a confidential informant

purchasing counterfeit goods from Appellant’s store on Donald Lee Hollowell

Avenue (the Hollowell location) in Atlanta, Georgia. In January 2008, law

enforcement executed a search warrant at Appellant’s store, arresting Appellant

and seizing over 6,500 counterfeit items. In May 2009, the FBI arrested Appellant

at his home in Fairburn, Georgia, and discovered a cache of sophisticated digital




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copying equipment, including multiple CD and DVD duplicating towers as well as

several hundred CDs, DVDs, and photocopies of disc labels. 3

       Second, a reasonable jury could find Appellant possessed the requisite mens

rea for the offense: that he acted knowingly. Appellant’s home, as well as the

Hollowell location, were overrun with the indicia of trafficking in counterfeit

labels. Sophisticated, high-volume copying equipment and a considerable quantity

of counterfeit labels, documentation, and packaging for copyrighted works were

discovered at both locations. Additionally, throughout 2008, investigators

witnessed Appellant purchasing the “raw materials” for counterfeiting, i.e., large

quantities of blank CDs, blank DVDs, and cases for CDs and DVDs. On 26 dates

between early 2008 and April 2009, the FBI videotaped Appellant buying such

materials from illicit vendors in the Atlanta area. From this evidence, a reasonable

jury could conclude Appellant was more than an unwitting participant in the

trafficking of counterfeit labels. Thus, Appellant’s challenge to Count Two fails.

B. Counts Three and Five: Felony Copyright Infringement

       Counts Three and Five charged Appellant with felony copyright

infringement under 17 U.S.C. § 506 and 18 U.S.C. § 2319 for willfully

reproducing, during a 180-day period, copyrighted works having a certain total

retail value. To convict Appellant under Counts Three and Five as charged, the

       3
         At trial, the parties stipulated that Appellant was not authorized by the copyright holders
to reproduce or distribute the identifying labels and documentation.


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Government needed to prove that he (1) willfully infringed (2) a copyright (3) for

purposes of commercial advantage or private financial gain (4) by reproducing or

distributing (5) ten or more copies of one or more copyrighted works worth more

than $2,500 in retail value (6) during any 180-day (six-month) period. See 17

U.S.C. § 506; 18 U.S.C. § 2319; see also United States v. Dadamuratov, 340 F.

App’x 540, 545 (11th Cir. 2009).

     1. Count Three

      In Count Three, Appellant was charged with felony copyright infringement

committed during the 180-day period between December 24, 2007, and June 21,

2008. Appellant contends the evidence was insufficient to convict him because the

Government failed to prove the infringement was committed for “purposes of

commercial gain.” The Government established only that he had purchased

counterfeit items in the past, but it did not show he produced or sold any

counterfeit CDs or DVDs.

      Viewed in the light most favorable to the Government, the evidence was

sufficient to convict Appellant on Count Three. First, the jury could infer

Appellant was guilty of the conduct underlying the offense: infringing a copyright

by reproducing or distributing ten or more copies of one or more copyrighted

works worth more than $2,500 in retail value. The police seized over 6,500




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counterfeit discs at the Hollowell location that were attributed to Appellant. Each

disc had a stipulated retail value of either $13.15 for CDs or $19 for DVDs. 4

       Second, a reasonable juror could infer Appellant conducted this operation

for the six-month period charged in the indictment. Between December 24, 2007,

and June 21, 2008, Appellant was seen or videotaped purchasing the raw materials

necessary for high-volume counterfeit manufacturing. Appellant’s raw materials

vendor testified that, during that same period, Appellant was a “regular customer,”

sometimes purchasing large quantities of blank CDs and DVDs, cases, and labeling

paper on a weekly basis.

       Third, a jury could conclude Appellant infringed copyrights and

“distributed” counterfeit items for purposes of financial gain. Such a purpose may

be shown through sales or solicitation. See United States v. Shabazz, 724 F.2d

1536, 1540 (11th Cir. 1984). Here, law enforcement videotaped Appellant

bringing the confidential informant into the Hollowell location, and the informant

emerging shortly thereafter with 80 counterfeit items. It was therefore reasonable

to conclude Appellant solicited or sold counterfeit items, and thus distributed them

for financial gain.




       4
         At trial, the parties stipulated that many of the items seized were counterfeit. For those
items that were not stipulated as counterfeit, we find that as to Counts Three and Five the
Government sufficiently proved those items were counterfeit reproductions of copyrighted
works.


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      Finally, a jury could deduce Appellant’s conduct was “willful.” Willfulness

means the “voluntary, intentional violation of a known legal duty.” Cheek v.

United States, 498 U.S. 192, 201 (1991); United States v. Kim, 307 F. App’x 324,

326 (11th Cir. 2009) (holding purposefulness and awareness of illegality supports a

finding of willful infringement). Willful infringement may be established from

proof that the defendant consciously and actively participated in a counterfeiting

enterprise with awareness of its illegality. See Dadamuratov, 340 F. App’x at

545–46.

      Here, sufficient evidence supported a finding that Appellant consciously and

actively participated in counterfeiting despite being aware it was wrongful. First,

Appellant sold counterfeit items in a clandestine fashion, suggesting he intended to

conceal his activities from law enforcement. At trial, witnesses testified that

Appellant’s store, from which he was videotaped selling counterfeit items, bore no

external markings or advertisements that would indicate it sold CDs or DVDs, nor

did it display a business license. Second, Appellant sold the counterfeit items at

prices well below retail value, suggesting he knew they were not lawful copies.

Although the informant was given only $150 with which to make the controlled

buy, he left the store with approximately 80 counterfeit CDs and DVDs labeled

with popular movie and music titles. This indicates an average sale price of less

than $2 per counterfeit item. It was not unreasonable for a jury to conclude



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Appellant voluntarily and intentionally infringed copyrights with full awareness of

its illegality. Therefore, the Government sufficiently proved each element of

felony copyright infringement as charged under Count Three.

     2. Count Five

      Count Five charged Appellant with felony copyright infringement from

December 22, 2008, until May 21, 2009. Appellant contends the evidence was

insufficient because the Government failed to prove he “reproduced or distributed”

phonorecords or motion pictures. His fingerprints were not found on any of the

seized items and he was not the only person living at his home at the time of his

arrest in May 2009.

      Viewed in the light most favorable to the Government, the evidence was

sufficient to convict Appellant on Count Five. First, the jurors could infer

Appellant committed the actus reus of the offense: infringing a copyright by

reproducing or distributing ten or more copies of one or more copyrighted works

worth more than $2,500 in retail value. The evidence showed Appellant’s home

doubled as a counterfeit workshop. Appellant had two multi-tray duplicating

towers in his bedroom closet, and his garage contained more duplicating towers as

well as counterfeit artwork and spindles of apparent counterfeit disc masters.

      Second, the jury could infer Appellant conducted this operation for the six-

month period charged in the indictment. Between December 22, 2008, and May



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21, 2009, Appellant was seen or videotaped purchasing the raw materials necessary

for high-volume counterfeit manufacturing. Law enforcement videotaped

Appellant buying 88 boxes of raw counterfeiting materials, each box containing as

many as 600 blank discs. According to his associate, Scott Ahn, Appellant

regularly purchased raw materials at either Ahn’s warehouse or in various parking

lots in the greater Atlanta area. Coupled with Appellant’s sophisticated

counterfeiting workshop, a reasonable jury could infer Appellant was engaged in

this conduct between the dates charged in the indictment.

      Third, evidence supported an inference that Appellant reproduced or

distributed counterfeit items for “commercial advantage or private financial gain.”

The government need not prove a defendant actually made a profit to show he

acted for purposes of financial gain. See United States v. Cross, 816 F.2d 297, 301

(7th Cir. 1987). Instead, the requisite intent is established when a jury could

reasonably find a defendant violated copyrights “to hopefully or possibly make a

profit.” Shabazz, 724 F.2d at 1540 (internal quotation marks omitted). Here,

based on the extensive equipment found at his home and his large-scale purchasing

of blank media, it was reasonable to conclude Appellant “hope[d]” to “make a

profit.” Id.

      Finally, a reasonable jury could conclude Appellant’s infringement was

“willful.” Willful infringement is shown when a jury could infer the defendant



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knew his conduct was illegal or otherwise wrongful. See Cross, 816 F.2d at 300–

01. In these circumstances, a prior arrest for similar or related activities may

establish the defendant was aware the law prohibited his conduct. See, e.g., Kim,

307 F. App’x at 326. Also, control or management of the premises in which the

counterfeit items were found strongly suggests willful infringement. See, e.g.,

Dadamuratov, 340 F. App’x at 545–46.

      Here, Appellant had been arrested for selling counterfeit items at his store on

Hollowell Avenue in January 2008, over a year before his arrest in May 2009.

Although the January 2008 arrest did not immediately lead to a prosecution, it

allowed for the reasonable inference that Appellant was aware copyright

infringement was illegal. Additionally, Appellant owned the home in which he

was arrested in 2009—the same home that contained abundant indicia of high-

volume counterfeiting. It was not unreasonable for the jury to infer Appellant

acted willfully given that he controlled the site of the counterfeiting and had been

made aware copyright infringement was proscribed by law. Thus, as with Counts

Two and Three, a reasonable jury could find the Government proved each element

of felony copyright infringement as charged under Count Five.

                                          II.

      Next, Appellant challenges the district court’s rejection of his requested jury

instructions. He claims the pattern jury instructions the district court actually



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issued were deficient in various ways. The pattern instructions allegedly did not

make clear that expert testimony was “opinion” testimony the jurors were free to

disregard. The pattern instructions purportedly failed to inform the jury it could

not draw any inferences from Appellant’s decision not to testify. Lastly, the

pattern instructions did not state explicitly that reasonable doubt could be found

from a lack of evidence.

      Ordinarily, this Court reviews a district court’s refusal to give a requested

jury instruction only for abuse of discretion. United States v. Sirang, 70 F.3d 588,

593 (11th Cir. 1995). But when, as here, a defendant fails to object to a particular

instruction, we review only for plain error. United States v. Felts, 579 F.3d 1341,

1343 (11th Cir. 2009). As a threshold matter, the plain error standard requires the

demonstration of an error. Id. at 1343–44. The district court, however, committed

no error in issuing Eleventh Circuit pattern jury instructions. The pattern

instructions correctly stated the law on each relevant point, and thus there can be

no doubt the jury’s deliberations were properly guided. See, e.g., United States v.

Beasley, 72 F.3d 1518, 1525 (11th Cir. 1996). Although Appellant preferred a

different formulation, a district court need not “use the exact words and phrasing

requested by defense counsel in its jury charge.” United States v. Gonzalez, 975

F.2d 1514, 1517 (11th Cir. 1992). Thus, Appellant has not shown plain error.




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                                          III.

      Appellant argues his trial counsel was unconstitutionally ineffective

according to the test articulated in Strickland v. Washington, 466 U.S. 668 (1984).

This Court, however, generally does not review ineffective assistance of counsel

claims on direct appeal, unless the record is sufficiently developed with evidence

relevant to the merits of the claim. See, e.g., United States v. Franklin, 694 F.3d 1,

8–9 (11th Cir. 2012); United States v. Merrill, 513 F.3d 1293, 1308 (11th Cir.

2008); United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). Appellant’s

case is no exception to this rule. At this point, the record is insufficiently

developed and we decline to address his ineffective assistance of counsel claims.

                                          IV.

      Appellant challenges the methodology and data underlying the district

court’s calculation of his offense level under the Sentencing Guidelines. Appellant

also challenges the substantive reasonableness of his sentence.

      At sentencing, the district court set Appellant’s offense level at 24 based on

the following logic. Pursuant to U.S.S.G. § 2B5.3(a), Appellant’s base offense

level was 8. Pursuant to § 2B5.3(b)(1) and § 2B1.1, the district court applied a 12-

level enhancement, because Appellant’s infringement amount exceeded $200,000.

The district court applied a two-level enhancement under § 2B5.3(b)(3)(A) based

on Appellant’s manufacture of infringing items. Appellant received another two-



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level enhancement pursuant to § 2B5.3(b)(2) because his offense involved the

reproduction of a pre-release work.

      Appellant argues that, among other things, the district court relied on

speculative evidence and the wrong criterion of fair market value in determining

the infringement amount. Ordinarily, we review the district court’s factual

findings—including infringement amounts—for clear error, its interpretation of the

Sentencing Guidelines and application of the Guidelines to the facts de novo,

United States v. Barrington, 648 F.3d 1178, 1194–95, 1197 (11th Cir. 2011), and

the reasonableness of a sentence for abuse of discretion, Gall v. United States, 552

U.S. 38, 49 (2007). However, we need not review such issues when (1) the district

court states it would have imposed the same sentence, even absent an alleged error,

and (2) the sentence was substantively reasonable. See United States v. Keene, 470

F.3d 1347, 1349 (11th Cir. 2006).

      Here, both of the Keene conditions are met. First, the district court indicated

unequivocally that in order to avoid unwarranted disparities and to deter high-

volume counterfeiting “this is the sentence” it “would impose even if . . . wrong in

the guidelines.” And, so as to remove all doubt, the district court judge declared,

“[i]n fact, I’m sure of that.”

      Second, Appellant has not carried the burden of showing that his 51-month

sentence was substantively unreasonable. See United States v. Talley, 431 F.3d



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784, 788 (11th Cir. 2005). Appellant’s 51-month sentence was within, and at the

low end of, his guidelines range of 51 to 63 months. See United States v. Tobin,

676 F.3d 1264, 1310 (11th Cir. 2012) (sentencing within the guidelines range

indicates substantive reasonableness). Appellant’s 51-month sentence was also

well below the statutory maximum of 25 years’ imprisonment. United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (sentencing below the statutory

maximum indicates substantive reasonableness). Thus, because both Keene

conditions are met, Appellant’s sentencing challenges fail.

                                          V.

      Finally, Appellant contends that even if each alleged error is independently

insufficient to warrant reversal, all of them taken together denied him a fair trial.

Cumulative error exists only where the defendant “establish[es] that the combined

errors affected his substantial rights.” United States v. Foley, 508 F.3d 627, 638

(11th Cir. 2007). Here, however, Appellant has not shown even a single error

committed at trial. Accordingly, Appellant cannot establish cumulative error. See,

e.g., United States v. Ladson, 643 F.3d 1335, 1342 (11th Cir. 2011).

                                          VI.

      For the foregoing reasons, Appellant’s convictions and sentence are

affirmed.

      AFFIRMED.



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