United States v. Abdoulaye Djibril Barry

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 5, 2010
• Docket: 09-14958
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT AUGUST 5, 2010 No. 09-14958 JOHN LEY Non-Argument Calendar CLERK ________________________

D. C. Docket No. 08-00123-CR-W-N

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ABDOULAYE DJIBRIL BARRY, KEMO M.S. KRUBALLY, MOMADOU NOUSSY DIALLO,

Defendants-Appellants.

________________________

Appeals from the United States District Court for the Middle District of Alabama _________________________

(August 5, 2010)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM: Kemo Krubally, Abdoulaye Djibril Barry, and Momadou Noussy Diallo

(“Noussy”) appeal their convictions for conspiracy to traffic in counterfeit goods,

18 U.S.C. § 371, and aiding and abetting each other in trafficking counterfeit

goods, 18 U.S.C. § 2320(a). Each of them contends that the government failed to

show that he knew that the goods being sold were counterfeit. Barry and Noussy

argue that they were merely store clerks who had no knowledge of the nature of the

goods.

We review de novo whether sufficient evidence supports a conviction,

viewing the evidence “in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor.”

United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir.2003) (citation and quotation

marks omitted). The government’s proof need not exclude every reasonable

hypothesis of innocence. United States v. Tampas, 493 F.3d 1291, 1297–98 (11th

Cir. 2007). The evidence is sufficient unless no reasonable trier of fact could find

guilt established beyond a reasonable doubt. See United States v. Lyons, 53 F.3d

1198, 1202 (11th Cir. 1995).

Under 18 U.S.C. § 371, the elements of the offense of conspiracy are: (1) an

agreement between two or more persons; (2) to commit a crime against the United

States; (3) and an overt act by one of them in furtherance of the agreement. United

2 States v. Guerra, 293 F.3d 1279, 1285 (11th Cir. 2002). “The existence of a

conspiracy may be proved by circumstantial evidence and may be inferred from

concert of action.” Id.

Under 18 U.S.C. § 2320(a), it is illegal if someone “intentionally traffics . . .

in goods or services and knowingly uses a counterfeit mark on or in connections

with such goods or services, or intentionally traffics . . . [in goods] knowing that a

counterfeit mark has been applied thereto, the use of which is likely to cause

confusing, to cause mistake, or to deceive.”1 An aiding and abetting conviction

requires the government to prove: “(1) the substantive offense was committed by

someone; (2) the defendant committed an act which contributed to and furthered

the offense; and (3) the defendant intended to aid in its commission.” United

States v. Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000).

The evidence showed that Krubally owned a store that sold huge quantities

of counterfeit goods, and he operated the store along with Barry and Noussy. This

was not your ordinary shopping establishment. It was located in a shopping center,

but no sign was in front of the store to indicate that anyone could shop there, and

1 The appellants argue that the government failed to establish that the counterfeit marks on the goods they sold were likely to cause confusion. See 18 U.S.C. § 2320(a); United States v. Torkington, 812 F.2d 1347, 1351–52 (11th Cir. 1987). The government, however, presented the testimony of two expert witnesses who said that the goods probably would look real to the average person, as well as one lay witness who said that she actually was unaware that she was buying counterfeit goods. The jury was entitled to credit that testimony. Ample evidence therefore supports the likelihood of confusion element of the convictions.

3 the windows were covered with strips of white material so that people could not

see inside. Bars were on the front windows. Witnesses testified that the door to

the store was kept locked and that, after they had been admitted to shop there, it

was locked behind them. That unusual level of security for a store that sold

consumer goods—shoes, purses, shoes, and pants—suggests that the appellants

knew that they were trafficking in counterfeit goods.

One regular customer testified that when he returned damaged items to the

store, he and the people there would use the word “bufale” to describe the items as

fake or counterfeit. The jury was entitled to credit that testimony and to infer that

all of the appellants, who regularly worked at the store, used the “bufale” term.

The jury also heard testimony: that no sales tax was charged on at least

some purchases; that purchases were sometimes placed into black plastic garbage

bags—an odd choice for a legitimate business; that all three appellants knew the

code to, and operated, the store’s security system; that each of them frequently

bought thousands of dollars worth of money orders at the post office in order to

pay for deliveries; and that the unusually steep markdowns indicated that the goods

were counterfeit. That evidence supports the conclusion that all three appellants

were knowing and active members in the criminal enterprise.

The government also presented some evidence that applies to fewer than all

4 of the appellants. It showed that Krubally made regular trips to purchase

counterfeit goods for the store, and that he actively negotiated discounts for certain

customers. It presented testimony from a UPS driver who said that Barry had told

him that the goods were not “legit.” The government also showed that Barry’s

vehicle contained 200 designer labels used for counterfeiting. Even if the labels

were not actually applied to goods found in the store, it could be inferred that the

labels were intended for such a use, and that his possession of them indicated

knowledge of the criminal conspiracy and an intent to participate. As for Noussy,

the jury heard testimony that he actively assisted customers during their purchases,

showing them the items, quoting prices, and writing up the bill of sale. Contrary to

Noussy’s argument, that is more than “mere presence” at the scene, which would

be insufficient to support a conviction for conspiracy. United States v. Hernandez,

433 F.3d 1328, 1333 (11th Cir. 2005). In any event, “the jury is permitted to

consider presence as a probative factor in determining whether the defendant

knowingly and intentionally participated in a criminal scheme.” Id. There was

also testimony that Noussy reduced the amounts of the money orders he needed in

order to avoid reporting the transactions, which indicates that he was trying to

avoid drawing attention to the store because he knew it was trafficking in

counterfeit goods.

5 Because the appellants acted in concert in running the store, a jury could

infer there was a conspiratorial agreement and overt acts to support the conspiracy

aspect of the charges. See Guerra, 293 F.3d at 1285. Viewing the evidence in the

light most favorable to the government, we therefore conclude that there was

sufficient evidence in support of each of the convictions.

AFFIRMED.