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United States of America v Kaba

Pays/Territoire
États-Unis d'Amérique
Type de cour
Nationale - cour supérieure
Date
Sep 11, 2012
Source
UNEP, InforMEA
Nom du tribunal
United States Court of Appeals for the Second Circuit
Langue
Anglais
Sujet
Espèces sauvages et écosystèmes
Résumé
Defendant Tamba Kaba was convicted of two counts of smuggling elephant ivory and one count of selling elephant ivory, 18 U.S.C. § 545; 16 U.S.C. § 3372(a)(1), and was sentenced to three concurrent terms of 33 months' imprisonment, three years of supervised release, forfeiture of USD 73,000, a USD 25,000 fine, and a USD 300 special assessment. In this appeal case, Kaba argues that insufficient evidence established that he knew he was importing elephant ivory and that he knew that importing elephant ivory is illegal. Because these challenges bear only on his smuggling conviction, Kaba's conviction for selling elephant ivory stands. Sufficient trial evidence supported Kaba's smuggling conviction. He was in Africa when the ivory was shipped from Africa to the United States. Kaba paid the shipping costs associated with both shipments, hired a freight-forwarder to pick up the shipments at the airport, and Kaba then transported those shipments to a storage facility in trucks he rented. The packing material in which one shipment of ivory was encased was found in the dumpster outside the facility. Later, Kaba sold a piece of ivory from one of the shipments to Dr. Jarra, who wrote on the check used to pay for the piece that the check was for the "ivory balance." That check was deposited into Kaba's account. Kaba's primary argument is that the evidence is insufficient because there is no direct evidence that Kaba knew that the shipments contained ivory. But, "knowledge and intent can ... be proved through circumstantial evidence and the reasonable inferences drawn therefrom," United States v. MacPherson, 424 F.3d 183, 189 (2d Cir.2005) (collecting cases), and, here, reasonable inferences drawn from the evidence establish that Kaba knew the shipments contained ivory. There was also sufficient evidence that Kaba knew that importing ivory was illegal. Kaba conceded during his testimony that he had "'heard from people'" that "'you cannot import ivory into the United States.'" Gov't Br. at 7 (quoting T:384). In addition, the packaging of the ivory pieces-hidden in hollowed-out compartments of statues—is strong evidence that Kaba (as importer) knew the ivory was being imported illegally. Kaba challenges his sentence on the ground that his trial counsel provided ineffective assistance by failing to review the pre-sentence report ("PSR") with Kaba, who claims he does not read English and thus could not read the PSR. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate, first, "that counsel's performance was deficient," that is, the attorney made errors so serious that the representation "fell below an objective standard of reasonableness," and, second, that there was prejudice. Kaba cannot show prejudice. He asserts that if he had received adequate counsel he would have objected to the two-level enhancement for commission of the offense for pecuniary gain because he did not profit from the single sale of ivory for which he was convicted. But the enhancement does not require Kaba to realize a profit in the transactions. It applies "[i]f the offense ... was committed for pecuniary gain or otherwise involved a commercial purpose." U.S.S.G. § 2Q2.1(b)(1). "'For pecuniary gain' means for the receipt of, or in anticipation of receipt of, anything of value, whether monetary or in goods or services." U.S.S.G. § 2Q2.1, cmt. n. 1. Actual profit and profitability are beside the point. The reference to "anticipat[ed]" receipt of "anything of value" confirms that the enhancement applies whenever the defendant anticipates a profit or anything of value. Accordingly, Kaba's sale of the ivory—even if he did not turn a profit—supports the two-level enhancement of his sentence. Judgment: 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). We have considered all of the additional arguments and find them to be without merit. Accordingly, the judgment of the district court is affirmed. (Provides by: UNODC SHERLOC)
Texte intégral
USA-9.pdf
Site web
www.unodc.org