United States v. Amadou Balde , 616 F. App'x 578 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4135
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AMADOU BALDE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:13-cr-00075-BR-2)
Submitted: April 30, 2015 Decided: June 18, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Amadou Balde appeals from his convictions and 70-month
sentence imposed pursuant to a jury verdict finding him guilty
of conspiracy to use counterfeit access devices, as well as
substantive counts of use of a counterfeit access device,
possession of counterfeit access devices, and possession of
access device making equipment. On appeal, Balde’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious issues for
appeal but raising six issues for this court’s consideration.
Balde has filed a pro se supplemental brief, addressing some of
the same issues and raising two additional claims. After a
thorough review of the record, we affirm.
I.
Balde contends that the district court’s admission of prior
bad acts dating as far back as 2004 was so prejudicial as to
deprive him of a fair trial. Balde’s co-conspirator, Shiek
Fofanah, testified against him at trial. During cross-
examination, counsel asked Fofanah about his knowledge and
expertise with similar crimes prior to meeting Balde. On
redirect, the Government asked, without objection, about Balde’s
prior knowledge. Balde contends that the admission of this
evidence of his conduct as far back as 2004 amounted to evidence
2
of “bad character” and was so prejudicial as to deprive him of a
fair trial. We normally review the district court’s evidentiary
rulings for abuse of discretion. United States v. Aramony, 88
F.3d 1369, 1377 (4th Cir. 1996). However, by failing to object
to the admission of the evidence during trial, Balde has failed
to preserve his objection. Fed. R. Evid. 103(a)(1); United
States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996). The admission
of the evidence is therefore reviewed for plain error. Chin, 83
F.3d at 87.
The challenged testimony is vague and, at most, infers that
Balde purchased cigarettes with re-encoded cards a couple of
months prior to the instant crimes and that he committed similar
crimes as far back as 2004. This evidence is part of the
foundation for the current conspiracy charges, as it explains
why Fofanah and Balde would partner with each other. See United
States v. Siegel, 536 F.3d 306, 316 (4th Cir. 2008) (permitting
prior bad act evidence that provided context). Similarly, the
challenged evidence that Balde was engaged in the same
activities as far back as 2004 and utilized the same manner and
method to re-encode cards was admissible to “complete the story
of the crime on trial,” see id., especially given that Balde’s
strategy was to portray himself as an innocent bystander. Thus,
Rule 404(b) did not mandate exclusion of the challenged
testimony.
3
Balde also contends that, even if the evidence was
admissible under Rule 404(b), it should have been excluded under
Rule 403, because the probative value of the evidence did not
outweigh its prejudicial effect. He asserts that the admission
of evidence of his misconduct years before the charged
conspiracy tainted his right to a fair trial. Evidence should
be excluded under Rule 403 only in rare cases because the policy
of the Federal Rules is that all relevant evidence should be
admitted. See United States v. Cooper, 482 F.3d 658, 663 (4th
Cir. 2007). The fact that the challenged evidence will damage
the defendant’s case is insufficient to render it inadmissible;
rather, to be excluded under Rule 403, the evidence must cause
“‘unfair’ prejudice,” and the “unfair prejudice must
‘substantially’ outweigh the probative value of the
evidence.” United States v. Grimmond, 137 F.3d 823, 833 (4th
Cir. 1998) (quoting Fed. R. Evid. 403). Here, the challenged
evidence was relevant to the history of the formation of the
conspiracy, as well as Balde’s motive, intent and knowledge. We
conclude that the evidence, while harmful to Balde’s defense,
was not unfairly prejudicial. Accordingly, the district court
did not err, plainly or otherwise, in admitting it.
II.
4
Balde also asserts that the district court erred in denying
his Fed. R. Crim. P. 29 motion for judgment of acquittal because
the Government’s evidence was insufficient to establish that he
was involved with or knew about the counterfeit access devices.
We review the denial of a Rule 29 motion de novo. See United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). When a
Rule 29 motion is based on a claim of insufficient evidence, the
jury’s verdict must be sustained “if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” United States v. Abu Ali, 528 F.3d 210, 244 (4th
Cir. 2008) (internal quotation marks, brackets and citations
omitted). We may not weigh the evidence or review the
credibility of the witnesses. See United States v. Allen, 491
F.3d 178, 185 (4th Cir. 2007). A defendant challenging the
sufficiency of the evidence faces a heavy burden. See United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).
Here, neither Balde nor counsel focus on specific elements
of the convictions. Instead, they argue that the Government’s
case rested on Fofanah’s testimony and that this testimony was
neither credible nor consistent. Nonetheless, the jury’s
decision to credit Fofanah’s testimony that he and Balde were
involved in a scheme to use re-encoded cards to defraud various
banks and retailers was a credibility determination that should
not be disturbed on appeal. See United States v. Moye, 454 F.3d
5
390, 396 (4th Cir. 2006) (“[I]t was for the jury, not this
court, to decide which version of the events-the government’s or
Moye’s-was more credible.”); see also United States v. Saunders,
886 F.2d 56, 60 (4th Cir. 1989) (recognizing that witness
credibility is within the sole province of the jury and the
court will not reassess the credibility of testimony).
Moreover, Fofanah’s testimony was corroborated by the
evidence that Balde avoided the police in order to dispose of
counterfeit gift cards, and that Balde was in possession of
items purchased with fraudulent gift cards. Because the
evidence presented was sufficient for a reasonable jury to
conclude that Balde was guilty of both the conspiracy and
substantive charges, we will not disturb the jury’s verdict.
III.
Balde next challenges the district court’s denial of his
motion to substitute counsel and his motion for a new trial
based upon ineffective assistance of counsel. We review a
district court’s ruling on a motion to substitute counsel for
abuse of discretion. United States v. Horton, 693 F.3d 463, 466
(4th Cir. 2012). We consider three factors: the “[t]imeliness
of the motion; [the] adequacy of the court’s inquiry into the
defendant’s complaint; and whether the attorney/client conflict
was so great that it had resulted in total lack of communication
6
preventing an adequate defense.” United States v. Gallop, 838
F.2d 105, 108 (4th Cir. 1988).
The district court conducted a thorough inquiry into the
conflict between Balde and his counsel. Balde appeared unaware
that his counsel had filed many of the motions that he was
requesting and was making progress on his other requests. In
fact, aside from his complaints that proved unfounded, Balde
stated that he was satisfied with counsel’s performance. While
Balde was dissatisfied with counsel’s communication with him, we
conclude that the disagreement was not sufficient to demonstrate
that Balde would not be provided an adequate defense.
Therefore, the district court did not abuse its discretion in
denying Balde’s motion to substitute counsel.
Regarding Balde’s request for a new trial based on his
allegations that counsel had prevented him from testifying on
his own behalf, Balde withdrew this motion. The court had
appointed him independent counsel who discussed Balde’s
potential testimony with him and advised him regarding his trial
counsel’s strategy. Thus, the record supports the conclusion
that Balde’s withdrawal of his motion was knowingly made after
consulting with independent legal counsel. Accordingly,
contrary to Balde’s assertions, the district court did not deny
this motion. Further, the district court did not abuse its
7
discretion in conducting the hearing and accepting the
withdrawal of the motion.
IV.
Balde further contends that the district court erroneously
calculated the loss amount for sentencing purposes because he
was held responsible for cards and account numbers that were not
connected to him and could not have been utilized and because
the district court erroneously relied upon the credit limit of
the cards and the potential loss, rather than the actual loss.
In assessing a challenge to the district court’s application of
the Sentencing Guidelines, we review the district court’s
factual findings for clear error and its legal conclusions de
novo. United States v. Alvarado Perez, 609 F.3d 609, 612 (4th
Cir. 2010). The amount of loss can be supported by a
preponderance of the evidence. United States v. Miller, 316
F.3d 495, 503 (4th Cir. 2003). Further, “[t]he court need only
make a reasonable estimate of the loss,” and its loss
determination “is entitled to appropriate deference,” given its
unparalleled access to the pertinent facts. U.S. Sentencing
Guidelines Manual § 2B1.1 cmt. n.3(C) (2013).
Here, Balde contends that he should not have been held
responsible for the cards possessed by Fofanah. Further, he
claims that he was not responsible for the account numbers on
8
the computer seized from his hotel room, because such numbers
may have been sold to multiple people. Pursuant to USSG
§ 1B1.3(a)(1)(B), in the case of jointly undertaken criminal
activity, a defendant is responsible for “all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity, that occurred during the
commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense.” Accordingly, as a participant
in the jointly undertaken criminal scheme, Balde is liable for
the loss or potential loss due to Fofanah’s cards, as well as
the potential loss based on the numbers found on the computer.
Balde also contends that the district court improperly
imputed to him the full credit limit of each card, rather than
conducting an individualized investigation into the intended
loss. The district court, however, did not calculate the credit
limit of each card; instead, the court added together the
realized losses and $500 for each account number or card. In
counterfeit access device cases, “loss includes any unauthorized
charges made with the counterfeit access device or unauthorized
access device and shall be not less than $500 per access
device.” USSG § 2B1.1 cmt. n.3(F)(i). Thus, the court properly
included at least $500 for every number recovered and related to
9
the conspiracy. Based on the foregoing, we find that the
district court’s loss calculations were without error.
V.
Next, Balde maintains that the court erred when it applied
an enhancement under USSG § 2B1.1(b)(10)(C), which provides for
a two-level increase if (1) the defendant relocated a fraudulent
scheme to another jurisdiction to evade law enforcement, (2) if
a substantial part of the scheme was committed from outside the
United States, or (3) if the offense involved sophisticated
means. The district court found that all three prongs were
satisfied by Balde’s scheme. On appeal, Balde argues that the
evidence supporting the first two prongs was not presented at
trial or sentencing, and it was improper to rely only on the
presentence report (“PSR”). As for the third prong, Balde
conclusorily states that the scheme was not sophisticated.
“Whether a defendant’s conduct involved sophisticated means
is an essentially factual inquiry, thus we review for clear
error.” United States v. Adepoju, 756 F.3d 250, 256 (4th Cir.
2014). The sophisticated means enhancement applies when a
defendant employs “especially complex or especially intricate
offense conduct pertaining to the execution or concealment of an
offense.” USSG § 2B1.1 cmt. n.9(B). While the scheme must
involve “more than the concealment or complexities inherent in
10
fraud,” Adepoju, 756 F.3d at 257, courts can find that a
defendant used sophisticated means even where he did “not
utilize the most complex means possible.” United States v.
Jinwright, 683 F.3d 471, 486 (4th Cir. 2012). Moreover, there
is no requirement that a defendant’s individual actions be
sophisticated; what matters is the sophistication of the scheme
as a whole. Adepoju, 756 F.3d at 257; see Jinwright, 683 F.3d
at 486 (“A sentencing court should consider the cumulative
impact of the criminal conduct, for the total scheme may be
sophisticated in the way all the steps were linked together.”
(internal quotation marks omitted)).
We conclude that Balde’s scheme was complex enough to
support the sophisticated means enhancement. Balde and Fofanah
not only obtained hundreds of stolen or fraudulent gift and
credit card numbers, but also used many of them by transferring
the numbers to stolen cards by use of access device making
equipment. The card numbers were obtained by email from an
individual in Indiana, who received them from overseas. Balde
and Fofanah disguised their fraudulent purchases by encoding
cards with the stolen credit card numbers, making their
purchases appear as legitimate, credible transactions. The
merchandise purchased with the re-encoded cards was first kept
in a storage unit and then sent to New York for sale. These
11
actions both facilitated the scheme and concealed it, making it
more complex than a typical credit card fraud scheme.
Given that the evidence clearly supported the
“sophisticated means” prong of USSG § 2B1.1(b)(10)(C), the
Guideline was appropriately applied. As only one prong is
necessary for the enhancement, we decline to address the
district court’s findings regarding the remaining two prongs.
VI.
Balde also avers that his sentence was improperly enhanced
under USSG § 2B1.1(b)(11), which provides for a two-level
increase when the offense involved the possession of device-
making equipment or the production of counterfeit access
devices. Balde contends that this enhancement constituted
improper double counting because his crimes, through their very
nature, involved possessing device-making equipment. Balde also
asserts that the device-making equipment belonged to Fofanah.
“Double counting occurs when a provision of the Guidelines
is applied to increase punishment on the basis of a
consideration that has been accounted for by application of
another Guideline provision or by application of a
statute.” United States v. Reevey, 364 F.3d 151, 158 (4th Cir.
2004). “[T]here is a presumption that double counting is proper
12
where not expressly prohibited by the guidelines.” United
States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010).
Application Note 10 to USSG § 2B1.1, which addresses
subsection (b)(11), contains no language prohibiting double
counting. Moreover, because Balde’s conviction counts were
grouped under USSG § 3D1.2(d), the Guidelines provide that “the
offense guideline applicable to the aggregate behavior is used”;
thus, the court “[d]etermine[s] whether . . . specific offense
characteristics or adjustments . . . apply based on the combined
offense behavior taken as a whole.” USSG § 3D1.3 cmt. n.3.
Here, Balde both possessed device-making equipment and
produced unauthorized access devices and, thus, clearly
qualified for the enhancement. * Given the lack of any
prohibition in the Guidelines, we conclude that double counting
in this situation was not error.
VII.
Balde also contends that the district court should not have
imposed a two-level enhancement under USSG § 2B1.1(b)(2)(A)(1),
for a crime involving ten victims. Specifically, Balde avers
that the PSR only lists eight victims that suffered actual loss.
*
Even if Fofanah possessed the equipment, such possession
was foreseeable, and thus attributable to Balde.
13
However, the PSR clearly lists ten victims. As Balde did not
object to this number in the district court, and the record
provides no reason to question the accuracy of the PSR, we
conclude that the district court did not err in applying the
enhancement.
VIII.
Finally, Balde objects to the overall reasonableness of his
sentence. We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 46 (2007). We first review for significant procedural
error, and if the sentence is free from such error, we then
consider substantive reasonableness. Id. at 51. Procedural
error includes failing to consider the 18 U.S.C. § 3553(a)
(2012) factors and failing to adequately explain the selected
sentence. Gall, 552 U.S. at 51. To adequately explain the
sentence, the district court must make an “individualized
assessment” by applying the relevant § 3553(a) factors to the
case’s specific circumstances. United States v. Carter, 564
F.2d 325, 328 (4th Cir. 2009). The individualized assessment
need not be elaborate or lengthy, but it must be adequate to
allow meaningful appellate review. Id. at 330. Substantive
reasonableness is determined by considering the totality of the
circumstances, and if the sentence is within the properly-
14
calculated Guidelines range, we apply a presumption of
reasonableness. United States v. Strieper, 666 F.3d 288, 295
(4th Cir. 2012).
Balde does not provide specifics as to why his sentence is
unreasonable. In imposing Balde’s sentence, the district court
did not provide a long explanation of the chosen sentence, but
nonetheless it was clear that the court listened to and
considered Balde’s request for leniency. The court rejected
Balde’s continuing protestations of innocence and imposed a
presumptively reasonable sentence at the low end of the
Guidelines range. We conclude that Balde’s sentence was
procedurally and substantively reasonable.
IX.
In accordance with Anders, we have thoroughly reviewed the
record and find no other meritorious issues for appeal.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform her client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. We dispense with oral
15
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
16