United States v. Saelim , 664 F. App'x 123 ( 2016 )

15-2766
United States v. Saelim
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 2nd day of December, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 ROSEMARY S. POOLER,
8 Circuit Judges,
9
10 GEOFFREY W. CRAWFORD,*
11 Judge.
12
13
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15
16 United States of America,
17 Appellee,
18
19 -v.- 15-2766
20
21 Usawan Saelim,
22 Defendant-Appellant,
23
* Judge Geoffrey W. Crawford, of the United States
District Court for the District of Vermont, sitting by
designation.
1
1 Rana Khandakar, also known as Rick
2 Shinwat,
3 Defendant.
4
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6
7 FOR APPELLANT: Elizabeth E. Macedonio, New York,
8 NY; Randall D. Unger, Bayside, NY.
9
10 FOR APPELLEE: Christine Magdo, Karl Metzner,
11 Assistant United States Attorneys,
12 for Preet Bharara, United States
13 Attorney for the Southern District
14 of New York.
15
16 Appeal from a judgment of the United States District Court
17 for the Southern District of New York (Koeltl, J.).
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
19 DECREED that the judgment of the district court be AFFIRMED.
20
21 Usawan Saelim was convicted, after a three-week jury trial,
22 of conspiracy to commit access device fraud in violation of 18
23 U.S.C. § 1029(b)(2); conspiracy to commit mail and bank fraud
24 in violation of 18 U.S.C. § 1349; bank fraud in violation of
25 18 U.S.C. § 1344 and 2; aggravated identity theft in violation
26 of 18 U.S.C. § 1028A and 2; and conspiracy to steal government
27 funds in violation of 18 U.S.C. § 371. The district court
28 (Koeltl, J.) sentenced her to an aggregate term of 36 months
29 of incarceration to be followed by three years of supervised
30 release. The district court also imposed a mandatory special
31 assessment and entered restitution and forfeiture orders.
32 Saelim argues that the evidence was insufficient to
33 establish that she participated in a conspiracy or that she
34 knowingly committed the charged crimes. Her co-defendant and
35 boyfriend (later, her husband), Rana Khandakar, largely
36 confessed to the crimes and testified at trial that Saelim was
37 not a knowing participant.
38 “We review challenges to the sufficiency of evidence de
39 novo.” United States v. Pierce, 785 F.3d 832, 837 (2d Cir.
40 2015). A defendant challenging the sufficiency of the evidence
41 bears a heavy burden because “we view the evidence in the light
42 most favorable to the government, drawing all inferences in the
2
1 government’s favor and deferring to the jury’s assessments of
2 the witnesses’ credibility.” Id. at 838. “We will sustain the
3 jury’s verdict if any rational trier of fact could have found
4 the essential elements of the crime beyond a reasonable doubt.”
5 Id. (internal quotation marks omitted). We acknowledge that
6 “[t]he jury may reach its verdict based upon inferences drawn
7 from circumstantial evidence,” and on review, “the evidence must
8 be viewed in conjunction, not in isolation.” United States v.
9 Persico, 645 F.3d 85, 104 (2d Cir. 2011). In cases of
10 conspiracy, deference to the jury’s determinations of
11 credibility, weight of the evidence and inferences “is
12 especially important . . . because a conspiracy by its nature
13 is a secretive operation, and it is a rare case where all aspects
14 of a conspiracy can be laid bare in court with the precision
15 of a surgeon’s scalpel.” United States v. Pitre, 960 F.2d 1112,
16 1121 (2d Cir. 1992) (internal quotation marks and citation
17 omitted).
18 Saelim argued at trial, as she argues now, that the
19 government failed to prove her participation in Khandakar’s
20 crimes. The jury rejected that argument, and to the extent that
21 Saelim relies on Khandakar’s testimony, we must defer to the
22 jury’s adverse assessment of his credibility.
23 The government offered abundant evidence that Saelim
24 knowingly participated in the fraudulent schemes. The relevant
25 criminal conduct was done primarily in the home that Saelim and
26 Khandakar shared, and that Saelim’s personal cell phone and
27 laptop were used in that conduct. Evidence found on her devices
28 reflected the use of stolen credit cards, the online sale of
29 stolen goods, text messages to and from potential purchasers
30 of those goods, and extended communications negotiating their
31 prices. One telling example was Saelim’s communications with
32 her friend “Phillip,” in which she provided specific advice on
33 how to sell items purchased with stolen credit card information
34 and on how to avoid detection and account suspension on eBay.
35 Given the breadth of communications provided, a reasonable jury
36 could conclude that Saelim knowingly engaged in those unlawful
37 activities herself, notwithstanding Khandakar’s testimony that
38 he was responsible for them, and merely borrowed Saelim’s
39 devices.
40 The government provided additional evidence probative of
41 Saelim’s knowing participation in the criminal conspiracy and
42 substantive crimes, whether or not the crimes were orchestrated
3
1 by Khandakar. Saelim possessed a large quantity of cash and
2 stolen credit cards and she repeatedly deposited large amounts
3 of the proceeds of criminal conduct into a bank account that
4 only she could access. Taken in combination, and viewed in the
5 light most favorable to the government, the evidence at trial
6 was sufficient for a reasonable jury to find her guilty of the
7 charged crimes.
8 Accordingly, and finding no merit in appellant’s other
9 arguments, we hereby AFFIRM the judgment of the district court.
10 FOR THE COURT:
11 CATHERINE O’HAGAN WOLFE, CLERK
4