     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
 4       New York, on the 11th day of September, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                SUSAN L. CARNEY,
 9                              Circuit Judge
10                JOHN GLEESON,
11                              District Judge.*
12
13
14       - - - - - - - - - - - - - - - - - - - -X
15       United States,
16                Appellee,
17
18                    -v.-                                               11-283-cr
19
20       Tamba Kaba
21                Defendant-Appellant.
22       - - - - - - - - - - - - - - - - - - - -X
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 freight-

22   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 two-

17   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

10   sentence.1

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
