United States v. Ndiaye , 197 F. App'x 780 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 2, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 05-3452
v. (D. Kansas)
(D.C. No. 05-CR-40017-SAC)
SERIGN E ND IAY E,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before TACH A, Chief Judge, A ND ER SO N and BROR BY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Serigne Ndiaye was found guilty following a jury trial of one count of
knowingly and intentionally possessing with intent to distribute approximately
979.64 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1). He was
sentenced to sixty-three months’ imprisonment, followed by four years of
supervised release. Ndiaye has filed a timely appeal.
Ndiaye’s appointed counsel, Stephen Kessler, has filed an Anders brief and
moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).
Ndiaye has not submitted a response to his counsel’s Anders brief. The
government has filed an answer brief. For the reasons set forth below, we agree
with M r. Kessler that the record in this case provides no nonfrivolous basis for an
appeal, and we therefore grant his motion to withdraw and we dismiss this appeal.
BACKGROUND
On M arch 17, 2005, Kansas Highway Patrol Trooper Richard Jimerson
stopped a commercial passenger vehicle driven by Ndiaye. The trooper stopped
the vehicle in order to check its registration, log book and medical certificate, all
of w hich are required for operation of a commercial vehicle, as w ell as to perform
a safety inspection. Ndiaye’s co-defendant, Ebrima Tunkara, was sitting in the
front passenger seat of the vehicle.
W hen asked by Trooper Jimerson, Ndiaye produced a certificate of
registration, but could not produce either a log book or a medical certificate. H e
-2-
also did not have a passenger manifest and a commercial driver’s license. The
trooper testified that Ndiaye seemed nervous during the stop and would not
maintain eye contact with the officer.
Additionally, Trooper Jimerson testified that, as he stood by the vehicle
door, he could smell raw marijuana. W hen asked by the trooper, Ndiaye opened
an emergency exit to the vehicle and Jimerson observed four large boxes stacked
in the aisle of the vehicle. Jimerson entered the vehicle, where he detected a
strong smell of raw marijuana emanating from the boxes. W hen asked what the
boxes contained, Ndiaye stated that they belonged to passengers that he had taken
from Atlanta to Denver. He was unable to explain, however, why the boxes
remained in the van after the passengers had been delivered. Trooper Jimerson
opened the boxes and discovered they contained one pound bricks of marijuana.
Both Ndiaye and Tunkara were arrested. Following their arrest, additional
amounts of marijuana were found in luggage in the back of the van. Ndiaye was
given his M iranda rights and agreed to make a statement. He told another
highway patrol trooper that he had delivered passengers to Denver and then
proceeded to Phoenix, Arizona, to pick up bags and boxes. W hen interviewed by
an agent with the Drug Enforcement Agency, he stated that he did not know the
boxes contained marijuana, but that he did know they contained something illegal.
H e also stated that w hen he and Tunkara reached Phoenix, they met two
M exicans, and that they subsequently drove the van to a strip mall where the
-3-
boxes and luggage w ere loaded into the van. At one point, he told investigators
that Tunkara was the leader of the whole enterprise, and that he (Ndiaye) was
merely follow ing Tunkara’s orders.
At Ndiaye’s trial, evidence was presented that receipts were found in the
van from Phoenix, M issouri and Colorado. Additionally, over Ndiaye’s objection,
evidence was introduced showing that various phone calls were made to and from
cell phones found on Ndiaye and Tunkara at the time of their arrest. Further
investigation revealed that both seized phones had shared numbers in their
memories, which were traced to two cell phones possessed by subscribers in
Phoenix. The phone records showed a number of calls between Ndiaye and
Tunkara and the Phoenix-based cell phones. Ndiaye did not testify at his trial.
The jury found him guilty of one count of possession of marijuana with intent to
distribute. This appeal followed.
D ISC USSIO N
Under Anders, “counsel [may] request permission to withdraw [from an
appeal] where counsel conscientiously examines a case and determines that any
appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930
(10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel
to
-4-
submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record. The client may then
choose to submit arguments to the court. The [c]ourt must then
conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous. If the court concludes after
such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.
Id. (citing Anders, 386 U.S. at 744).
In his Anders brief, Ndiaye’s counsel indicates that Ndiaye believes he has
two grounds for appeal: (1) that the evidence supporting his conviction is
insufficient; and (2) that the district court erred in admitting into evidence the cell
phone records of calls made to and from cell phones belonging to Ndiaye and
Tunkara, where there was no direct evidence of who made or received the calls.
W e agree with Ndiaye’s counsel that neither argument presents a nonfrivolous
basis for an appeal. W e briefly explain why.
1. Sufficiency of evidence
“W e review challenges to the sufficiency of the evidence de novo.” United
States v. Isaac-Sigala, 448 F.3d 1206, 1210 (10th Cir. 2006). In conducting that
review, “we consider only whether, taking the evidence–both direct and
circumstantial, together with the reasonable inferences to be drawn therefrom–in
the light most favorable to the government, a reasonable jury could find the
defendant guilty beyond a reasonable doubt.” Id. (further quotation omitted). “A
-5-
conviction should be reversed only if no reasonable juror could have reached the
disputed verdict.” Id. (further quotation omitted).
Ndiaye argues there was insufficient evidence demonstrating he knowingly
possessed the marijuana found in the van. W e disagree. W hile Ndiaye continued
to insist that he did not know the boxes and luggage contained marijuana, there
was substantial evidence to the contrary. Having carefully reviewed the entire
record, the argument that the evidence supporting Ndiaye’s conviction is
insufficient is frivolous.
2. Admission of cell phone records
As indicated, the government introduced cell phone records from the
phones found on Ndiaye and Tunkara at the time they were arrested. These
records showed that both phones had made and received calls from Phoenix-based
cell phone customers. The government sought to introduce the phone records on
the ground that there was probative value in the fact that: (1) calls were made on
Ndiaye’s phone, thereby demonstrating that he was a principal in the offense;
(2) the calls showed an association with Tunkara, who was making and receiving
calls from the same individuals in Phoenix; and (3) the calls demonstrated an
association with the location where the drugs were obtained, thereby undermining
Ndiaye’s claim that he was unaware of the contents of the boxes and/or an
innocent dupe of Tunkara.
-6-
“W e review rulings on admission and exclusion of evidence for abuse of
discretion.” United States v. Allen, 449 F.3d 1121, 1125 (10th Cir. 2006). Once
again, having reviewed the entire record in this case, we conclude that the
argument that the district court abused its discretion in admitting the phone
records is frivolous. The records were clearly probative and relevant to the
government’s case.
C ON CLU SIO N
For the foregoing reasons, we GRANT counsel’s motion to withdraw and
we DISM ISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-7-