United States v. Ousamane Barry , 534 F. App'x 138 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-4334
_____________
UNITED STATES OF AMERICA
v.
OUSAMANE BARRY,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court Nos. 3-09-cr-00220-002)
District Judge: Honorable James M. Munley
Argued on July 18, 2013
(Filed: August 5, 2013)
Before: RENDELL, SMITH and ROTH, Circuit Judges
Michael J. Diamondstein, Esquire
Jason D. Javie, Esquire (Argued)
Two Penn Center
Suite 900
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Counsel for Appellant
Peter J. Smith, Esquire
United States Attorney
Michelle L. Olshefski, Esquire (Argued)
Amy C. Phillips, Esquire
Assistant United States Attorney
235 North Washington Avenue
Scranton, PA 18503
Counsel for Appellee
OPINION
RENDELL, Circuit Judge:
Appellant Ousamane Barry was convicted after a jury trial of three counts of
unauthorized use of counterfeit access devices and one count of conspiracy to use
counterfeit access devices in connection with a scheme to use fraudulent credit cards
throughout New Jersey and Pennsylvania. Thereafter, Barry was sentenced to 41
months’ incarceration, two consecutive two-year terms of supervised release, restitution,
and a $400 special assessment. Barry now appeals the judgment of conviction and the
sentence imposed. For the reasons stated below, we will affirm the judgment of
conviction, but we will remand with respect to sentencing.
I. Background
On February 28, 2009, police responded to a call from the Clinton Township Wal-
Mart loss prevention department. When the police arrived at the store, they were
informed that two men had attempted to purchase merchandise with stolen or fraudulent
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credit cards. Police officers took the two men—Abdoulaye Ndour and Addis Aka—into
custody, and were then joined by Officer Santoro, who later testified at Barry’s trial.
Officer Santoro was informed that two men were acting suspiciously in a van in
the Wal-Mart parking lot. After Ndour and Aka admitted that the two men—who turned
out to be Barry and another co-defendant, Ousamane Camara—were with them, Officer
Santoro approached the van. Through the van’s windows, he could see several laptop
computer boxes and Wal-Mart bags filled with merchandise, including several Nintendo
game systems. Police obtained consent to search the vehicle from Camara, who was
sitting in the driver’s seat. Officer Santoro observed three to six credit cards stuffed into
the driver’s side seatbelt housing when Camara stepped out of the vehicle. Police also
found five laptop boxes when Camara opened the van’s back hatch, and three additional
Wal-Mart bags filled with Nintendo DS gaming systems when Camara opened the side
door. After Barry, who was sitting in the passenger seat, stepped out of the van, officers
saw an additional four to six credit cards stuffed in the passenger side seatbelt housing.
Barry and Camara were then taken into custody. During an inventory search after the van
was towed, police found receipts from Wal-Marts in Phillipsburg and Wilkes-Barre,
Pennsylvania, all dated February 28, 2009. A total of 81 credit cards were discovered in
the van.
Further investigation by the United States Secret Service revealed that the credit
cards were counterfeit or fraudulent,1 and that the men had made other fraudulent
1
The record does not indicate the precise way in which the credit cards were created,
altered, or otherwise rendered counterfeit or fraudulent.
3
purchases at Wal-Mart stores in New Jersey and Pennsylvania. Secret Service Agent
Jason Wolfson contacted the financial institutions associated with the account numbers to
verify that the accounts were compromised. The financial institutions provided the
potential exposure with respect to each card, and Agent Wolfson arrived at a total
potential exposure of $675,170 by aggregating the maximum individual exposure on each
account associated with the 81 credit cards found in the van.
On July 21, 2009, a grand jury in the Middle District of Pennsylvania issued an
indictment charging Barry with three counts of credit card fraud in violation of 18 U.S.C.
§ 1029 and one count of conspiracy in violation of 18 U.S.C. § 371. Barry, along with
his co-conspirator Camara, proceeded to trial on April 23, 2012. Barry’s chief defense
was that he was in the van simply to be driven home from a wedding, that he did not
know that the other men were engaged in criminal activity, and that he had committed no
crimes.
During the course of the three-day trial, Officer Santoro testified for the
government. On cross-examination, defense counsel attempted to elicit testimony that
would support Barry’s chief defense by asking Officer Santoro, “Did Mr. Barry ever
make any type of confessions or admissions to you that he knew what these guys were up
to, that he knew they were engaged in criminal activity?” (App. 138.) On redirect, the
government attempted to refute the suggestion that Barry was not aware that the other
men were engaged in criminal activity:
Q: Attorney Comerford asked you whether or not Mr. Barry said
anything to you. Do you recall that testimony?
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A: Yes.
Q: Did Mr. Barry ever say to you, hey, I was at a wedding. I don’t
know what these guys were up to, but I had nothing to do with it?
Did he ever say that to you that day?
A: No.
Q: At any point did he ever say that?
A: No. Until you just said it, that was the first time I was being made
aware of that.
(App. 147.)
Barry’s attorney objected immediately:
Mr. Comerford: Your Honor, I think we’re in a gray area here. I really
don’t think we can use a Defendant’s silence as evidence against
him, and that’s what she’s doing.
Ms. Olshefski: Your Honor, he opened the door on cross examination to
what, if anything, Mr. Barry said when he was in the company of
this police officer.
The Court: Would you repeat that again?
Ms. Olshefski: Attorney Comerford opened the door to that question when
he asked Officer Santoro what, if anything, Mr. Barry said while he
was in the company of Officer Santoro.
The Court: Sustain the objection.
(Id.)
The government also presented Ndour and Aka as witnesses. They testified that
all four men knew each other, and that they traveled between Virginia and New York to
use the fraudulent credit cards. The government also presented testimony from Amadou
5
Diallo, who knew Barry and Camara from New York, and testified that the three men
used counterfeit credit cards throughout Pennsylvania.
In the defense case, Barry testified on his own behalf, claiming that he had no idea
why the van stopped at multiple Wal-Marts and that he was merely getting a ride home
from a wedding. Barry presented a photograph of him in the bride’s home to corroborate
his story, although the photograph had no date stamp. Barry also testified that he did not
know Ndour or Aka prior to the trip and that “I never committed those crimes. I swear to
God.” (App. 423.)
The jury returned a guilty verdict on all counts.
In preparation for sentencing, the United States Probation Office prepared a pre-
sentence report on June 19, 2012, finding that Barry’s total offense level was 22—which
included a 14-level enhancement for intended loss in excess of $400,000 but less than $1
million and a 2-level enhancement for obstruction of justice based on Barry providing
false testimony at trial—and a criminal history category of I. The PSR recommended a
term of imprisonment between 41 and 51 months and a term of supervised release of
three years.
Barry objected to the enhancements, and at his sentencing on November 8, 2012,
the District Court heard testimony and argument on those enhancements. The
government offered testimony from Agent Wolfson, who detailed the manner in which he
determined the potential exposure amount of each credit card and concluded from his
research that the aggregate potential exposure as to the 81 cards found in the van was
$675,170. Barry offered no testimony or other evidence into the record on the intended
6
loss issue. The District Court also heard argument regarding the obstruction of justice
enhancement.
At the conclusion of the hearing, the District Court held that the intended loss
calculation of $675,170 was appropriate based on Agent Wolfson’s testimony, argument
from both parties, and the PSR.2 The District Court also credited the government’s
argument that Barry’s testimony was not believed to be truthful, and therefore found that
the obstruction of justice enhancement was proper. The District Court then sentenced
Barry to 41 months’ imprisonment, restitution in the amount of $13,396.62, and a special
assessment of $100 on each count ($400 in total).
Barry’s timely appeal followed.
II. Discussion
Barry raises three issues on appeal: (1) that the government violated his due
process rights pursuant to Doyle v. Ohio by eliciting testimony at trial regarding his post-
arrest silence; (2) that his sentence was unreasonable because the intended loss
calculation equated potential loss with intended loss; and (3) that the District Court erred
by adding a 2-point enhancement for obstruction of justice.
A. Doyle Violation
2
For the purposes of sentencing, the District Court considered only the 81 cards found in
the van, whose aggregate limit was $675,170, as opposed to the 102 cards “that were part
of the investigation” (App. 590), whose aggregate limit was $863,015. This did not
affect the District Court’s application of the intended loss calculation, however, as in
either case, the value was in excess of $400,000 but less than $1 million, which would
result in a 14-level increase under U.S.S.G. § 2B1.1(b)(1).
7
Barry argues that his conviction should be vacated because the government
violated his due process rights pursuant to Doyle v. Ohio, 426 U.S. 610 (1976). Under
Doyle v. Ohio, a prosecutor violates a defendant’s due process rights when she questions
his post-arrest and post-Miranda silence to impeach his trial testimony. Id. at 611; see
also Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir. 1998). Barry’s due process
violation claim is subject to plenary review. Gov’t of the Virgin Islands v. Davis, 561
F.3d 159, 163 (3d Cir. 2009). Doyle violations claims are then subject to harmless error
review. Gov’t of the Virgin Islands v. Martinez, 620 F.3d 321, 335 (3d Cir. 2010).
“Accordingly, we ask first whether a violation occurred and, if it did, we ask whether it
had an effect on the jury’s verdict beyond a reasonable doubt.” Id.In this case, we need not dwell on whether the government’s examination of
Officer Santoro was indeed a Doyle violation, because even if it was, it was harmless.
The government’s question to Officer Santoro that implicated Barry’s post-arrest, post-
Miranda silence was only asked once, and Barry’s objection was immediately sustained.
See United States v. Agee, 597 F.2d 350, 359 (3d Cir. 1979) (assuming that a question fell
within the Doyle proscription, but finding it harmless because “[t]his is not a case in
which repetitive questioning focused the jury’s attention on the defendant’s silence. . . .
Only a single question was involved here”). Nor did the government dwell on this
question during closing arguments.
Furthermore, importantly, there was sufficient other evidence to suggest that Barry
was convicted for reasons other than the prosecutor’s possibly improper question. For
instance, three cooperating witnesses—Diallo, Aka, and Ndour—testified consistently
8
that they had assisted Barry in a scheme to fraudulently purchase merchandise from Wal-
Mart stores throughout Pennsylvania and New Jersey since September 2008. The
government also presented surveillance photographs from a Wal-Mart that showed Barry,
as identified by Diallo, inside the Wal-Mart “doing his own thing” while Diallo used a
fraudulent card on January 19, 2009. (App. 211-13.) Additionally, police officers
discovered fraudulent credit cards in the seatbelt housing next to where Barry was seated.
Given the overwhelming evidence—both testimonial and physical—that Barry
was indeed an active participant in the fraudulent scheme, the government’s question
regarding Barry’s post-arrest, post-Miranda silence—even if it was a Doyle violation—
was “harmless beyond a reasonable doubt.” United States v. Waller, 654 F.3d 430, 438
(3d Cir. 2011) (“When the error found is of a constitutional nature, a court may
nonetheless uphold the conviction if the error was ‘harmless beyond a reasonable
doubt.’” (citations omitted)).
B. Sentencing
We review a district court’s sentence for abuse of discretion in two stages. First,
we review for procedural error—for example, failing to correctly compute the Guidelines
range. United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). If we find procedural
error at any step, we will generally “remand the case for re-sentencing without going any
further.” Id. (quoting United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010)). If
there is no procedural error, the second stage of our review is for substantive
reasonableness. Id.9
If we decide that a district court misapplied the Guidelines, “a remand is
appropriate unless the reviewing court concludes, on the record as a whole, that the error
was harmless, i.e., that the error did not affect the district court’s selection of the sentence
imposed.” United States v. Smalley, 517 F.3d 208, 212 (3d Cir. 2008) (internal quotation
marks and citations omitted).
1. Intended Loss
In calculating the appropriate Guidelines range, the Sentencing Guidelines
mandate that a sentencing court increase the offense level according to a schedule of loss
amounts. U.S.S.G. § 2B1.1(b)(1). Sentencing courts are directed to use “the greater of
the actual or intended loss” in applying § 2B1.1(b).3 In this case, the District Court
equated the potential loss—$675,170, or the aggregate credit limits4—with the intended
loss, despite the fact that the actual loss was only $13,396.33. (PSR ¶ 13.) This resulted
in the District Court’s increasing Barry’s offense level by 14 points. U.S.S.G.
3
Actual loss refers to the reasonably foreseeable pecuniary harm that actually occurred,
and intended loss refers to the loss which the offender intended, including harm that
would be unlikely or impossible to occur. U.S.S.G. § 2B1.1 app. n.3(A)(i) & (ii).
4
The District Court relied on the testimony of Agent Wolfson for this figure. Barry
argues that the District Court’s decision to credit Agent Wolfson’s hearsay testimony was
erroneous, but this argument is unpersuasive. A sentencing judge may “consider
responsible unsworn or ‘out-of-court’ information relative to the circumstances of the
crime and to the convicted person’s life and characteristics,” Williams v. Oklahoma, 358
U.S. 576, 584 (1959), and a district court’s decision to credit hearsay testimony is subject
to clearly erroneous review, United States v. McGlory, 968 F.2d 309, 347 (3d Cir. 1992).
The District Court’s reliance on Agent Wolfson’s spreadsheets listing the applicable
credit limits for each card was not clearly erroneous.
10
§ 2B1.1(b)(1) (loss of more than $400,000 but less than $1,000,000 results in the addition
of 14 points). The actual loss amount would have resulted in only a 4-point increase. Id.
The District Court sentenced Barry on November 8, 2012 without the benefit of
our opinion in United States v. Diallo, 710 F.3d 147 (3d Cir. 2013). In Diallo, we
addressed a nearly identical situation in which the defendant traveled throughout
Virginia, Pennsylvania, New Jersey, and New York using fraudulent credit cards. Id. at
148. While the actual loss attributable to the defendant was $160,000, a Secret Service
case agent testified that the total credit limit of the credit cards was approximately $1.6
million. Id. at 149. Over the defendant’s objections, the government argued that this
figure should be the “intended loss” for the purposes of sentencing. Id. The district court
accepted the government’s arguments, and increased the defendant’s offense level by 16
points.
On appeal, we considered “how sentencing courts should calculate what
‘pecuniary harm was intended to result’ from credit card fraud when the fraud’s
perpetrator did not know the credit limit, which is the potential loss amount from the
stolen credit card.” Id. at 150 (quoting U.S.S.G. § 2B1.1(b)(1) app. n.3 (A)(ii)). Looking
to United States v. Geevers, 226 F.3d 186 (3d Cir. 2000), we held that “‘[w]hile intended
loss may not be automatically determined based on what the potential loss is, intended
loss may still equal potential loss.’” Diallo, 710 F.3d at 151 (quoting Geevers, 226 F.3d
at 192). We noted, however, that “‘[i]t is clear that a district court errs when it simply
equates potential loss with intended loss without deeper analysis.’” Id. (quoting Geevers,
226 F.3d at 192). Instead, a burden-shifting framework is appropriate in such cases.
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“[T]hough the government bears the burden of proof in guidelines cases, the burden of
production may shift to the defendant once the government presents prima facie evidence
of a given loss figure.” Id. (quoting Geevers, 226 F.3d at 188).
With respect to the defendant’s sentencing in Diallo, we found that the district
court had not engaged in the requisite “deeper analysis.” We noted that:
[i]t is possible that the District Court relied on the Secret Service agent’s
testimony that the search of his car uncovered a skimming device; the
evidence that Diallo has traveled from Virginia to New York in order to use
the fraudulent credit cards; that Diallo had already spent $160,000 and was
continuing to make additional purchases; or that at the time of his arrest,
Diallo had returned to a store where he had made $2,600 in purchases just
one day prior. It is also conceivable that the District Court agreed with the
Government’s argument that Diallo intended to charge up to the credit limit
on every credit card number found in his possession. On the other hand,
the District Court might simply have incorrectly presumed that the
aggregate credit limit alone can make out a prima facie case for intended
loss amount in credit card fraud. . . [W]e would be speculating as to what
evidence or argument was the basis for the District Court’s finding that
$1.6 million was Diallo’s intended loss amount.
Id. at 153. Accordingly, we remanded to the district court to determine the intended loss
amount and whether a departure was warranted based on the intended loss amount
overstating or understating the seriousness of the offense. Id. at 154.
In this case, the District Court overruled Barry’s objection to the calculation
simply by stating: “We have overruled the objection. I do that based on the testimony
that I received here today, based on the arguments by both government and the defendant.
And having—appreciating the burden is on the government—proved this by a
preponderance of the evidence.” (App. 596-97.) This falls short of the “deeper analysis”
required under Diallo and Geevers. Furthermore, it is clear that this error affected the
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District Court’s sentence, as the District Court increased Barry’s offense level by 14
points, resulting in a Guidelines range of 41 and 51.5
Accordingly, we will vacate Barry’s sentence and remand to allow the District
Court to engage in the “deeper analysis” required under our law to assess whether Barry
intended to charge up to the limit on each card. Diallo, 710 F.3d at 153.
2. Obstruction of Justice
Barry also objects to the District Court’s addition of a 2-point enhancement for
obstruction of justice. Under the Sentencing Guidelines, the offense level is to be
increased by 2 levels
[i]f (1) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the defendant’s
offense of conviction and any relevant conduct; or (B) a closely related
offense.
U.S.S.G. § 3C1.1. The official commentary identifies perjury as an example of conduct
warranting imposition of the enhancement. Id. at § 3C1.1 app. n.4(B).
As we stated in United States v. Miller, 527 F.3d 54 (3d Cir. 2008), to trigger the
application of this enhancement, a defendant must give “false testimony concerning a
material matter with the willful intent to provide false testimony.” Id. at 75 (quoting
United States v. Dunnigan, 507 U.S. 87, 94 (2003)). The Supreme Court also addressed
this enhancement in United States v. Dunnigan, when it found that “[a] witness testifying
5
Had the District Court considered the actual loss amount of $13,396.33, Barry’s offense
level would have been increased by 4 points, which would have resulted in a Guidelines
range of 10-16 months. (Appellant’s Br. at 18-19.)
13
under oath or affirmation violates [the federal criminal perjury statute] if she gives false
testimony concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.” 507 U.S. at 94.
Although it is preferable that the district court address each element of the alleged perjury
in a separate and clear finding, separate findings are not required by Dunnigan.
Dunnigan, 507 U.S. at 95; see also United States v. Boggi, 74 F.3d 470, 479 (3d Cir.
1996) (rejecting defendant’s argument that the district court must make an independent
finding of perjury under Dunnigan). Furthermore, a guilty verdict not set aside binds the
sentencing court to accept the facts necessarily implicit in the verdict. Id. at 478-79. We
review a district court’s factual finding of willful obstruction of justice for clear error.
United States v. Powell, 113 F.3d 464, 467 (3d Cir. 1997).
Barry was on trial for credit card fraud and conspiracy to commit credit card fraud.
It is uncontested that Barry testified under oath. Furthermore, it is uncontested that he
provided testimony on material matters. The only question is whether that material
testimony was false, so as to warrant an enhancement. Barry testified, inter alia, that he
had not provided any co-conspirator with credit cards, which was contradicted by the
testimony of Diallo. (App. at 422, 199.) Barry also testified that he had no idea why the
van was stopping at Wal-Marts. (App. at 420.) Because a sentencing court is bound to
accept the facts necessarily implicit in the jury’s verdict, the District Court was bound to
accept that the jury found that Barry intended to defraud (an element of credit card fraud)
and that he knew the object of the conspiracy (an element of conspiracy). The jury’s
findings therefore confirm that it did not credit Barry’s testimony. See Boggi, 74 F.3d at
14
478-79 (finding defendant’s testimony not credible, both in the court’s own judgment and
as a necessary implication of the jury’s verdict); see also United States v. Fiorelli, 133
F.3d 218, 221 (“[W]here the record establishes that the district court’s application of the
enhancement necessarily included a finding as to the elements of perjury, and those
findings are supported by the record, we will not remand merely because the district court
failed to engage in a ritualistic exercise and state the obvious for the record.” (internal
quotation marks and citation omitted)).
At sentencing, the government’s burden is “preponderance of the evidence”—the
jury’s verdict demonstrates by a preponderance of the evidence that the jury discredited
at least some of Barry’s testimony and therefore warrants the District Court’s application
of the obstruction of justice enhancement.
III. Conclusion
For the reasons stated above, we will affirm the District Court’s judgment of
conviction and remand for re-sentencing for the deeper analysis regarding the
determination of intended loss required by our precedent.
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