United States v. Fatou Diallo Suberu , 367 F. App'x 19 ( 2010 )

[DO NOT PUBLISH]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
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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
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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
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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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