United States v. Jackson Ndemba , 463 F. App'x 396 ( 2012 )

Case: 10-31188 Document: 00511777543 Page: 1 Date Filed: 03/05/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 5, 2012
No. 10-31188 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JACKSON NTONE NDEMBA, also known as Ndemba Ntone Jackson, also
known as Sammy Jackson; PIERRE EMMANUEL JALLA, also known as
Marco Jalla,
Defendants - Appellants
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CR-228-2
Before KING, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendants–Appellants Jackson Ntone Ndemba and Pierre Emmanuel
Jalla were convicted of conspiracy to manufacture counterfeit United States
currency in violation of 18 U.S.C. §§ 471 and 371, and manufacturing counterfeit
United States currency in violation of 18 U.S.C. §§ 471 and 2. Defendants timely
appealed, arguing that their convictions were not supported by sufficient
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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evidence. For the reasons stated below, we AFFIRM the judgments of
conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves a scheme to steal $60,000. Defendant–Appellant Pierre
Emmanuel Jalla (“Jalla”) testified at length about the details of the scheme at
trial and demonstrated the steps of the scheme to FBI agents in the
Government’s Exhibit 23, a video that was made shortly after Jalla’s arrest and
was played for the jury at trial. An audiotape of Jalla’s description of the scheme
to undercover officer Adele Robert Saman (“Saman”) was also played at trial.
To conduct the scheme, Jalla needed to find a victim who would provide
$60,000 in actual United States currency that would purportedly be used to
make $120,000 in counterfeit currency. Jalla would make an agreement with
the victim that Jalla would keep $60,000 of the counterfeit currency made, and
the victim would receive the other $60,000 of counterfeit currency, as well as the
$60,000 in actual currency. The victim would come to a hotel room to participate
in the making of counterfeit $100 bills. Jalla and the victim would work in low
light, and Jalla would use latex gloves, masks, and chemicals (baby powder,
green alcohol, and iodine) in order to make the counterfeiting operation seem
believable to the victim. During the process, Jalla would have the victim bring
the actual currency into the bathroom so it could be heated in warm water in the
bathtub. The heating process was purportedly necessary to facilitate the
transfer of color from the genuine currency to pieces of white paper cut to the
size of dollar bills. Jalla would then tell the victim that he forgot his syringe and
would send the victim out of the room to retrieve it. While the victim was out,
Jalla would replace the victim’s actual currency with fake currency that Jalla
had secretly brought into the bathroom. Jalla and the victim would then take
the counterfeit currency, which the victim believed was the actual currency, out
of the bathtub and put sheets of white paper on either side of these fake bills.
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This was purportedly a step in making the sheets of white paper into counterfeit
currency. Jalla then would divide the currency and paper into three stacks and
soak each stack in iodine. Finally, Jalla would inject the stacks with green
alcohol and would send the victim home with all three stacks. Jalla and the
victim would agree to meet the following day so that Jalla could apply a special
cleaning fluid to the bills to complete the counterfeiting process. However, Jalla
would not meet the victim the next day, but would instead leave with the
$60,000 in actual currency he had secretly taken. At the end of the scheme, the
victim would be left with worthless black paper.
Jalla traveled from Atlanta to New Orleans with the intention of finding
a victim for his scheme. Defendant–Appellant Jackson Ntone Ndemba
(“Ndemba”) was Jalla’s driver during the trip. Jalla testified that Ndemba was
unaware of his scheme and merely wanted to visit New Orleans as a tourist. On
this trip, Jalla encountered a man known as “Nick,” who was purportedly
interested in participating in the scheme, and Jalla demonstrated his
counterfeiting technique to him. During the final steps of the demonstration,
Jalla switched the fake currency he was making with genuine currency and
pretended that the real currency was the end product of his counterfeiting
process. “Nick,” who was actually a confidential informant, eventually
introduced Jalla to a man known as “Jimmy,” who was purportedly interested
in providing the $60,000 Jalla said he needed to make $120,000 in counterfeit
bills. Jalla demonstrated his counterfeiting technique to both “Nick” and
“Jimmy.” On July 23, 2009, Jalla agreed with “Nick” and “Jimmy” that, on July
27, 2009, “Jimmy” would provide $60,000 in actual currency and would rent a
hotel room where they would manufacture $120,000 in counterfeit currency.
Subsequently, Ndemba drove Jalla back to Atlanta, where, according to Jalla’s
testimony, Jalla worked alone to prepare for his scheme by gathering materials
and printing counterfeit bills.
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When Jalla and Ndemba returned to New Orleans, Jalla dealt with a man
known to him as “Ahamed,” who was purportedly Jimmy’s older brother.
“Ahamed” was actually Saman, the undercover officer whose phone conversation
with Jalla is mentioned above. Jalla and Ndemba met with “Ahamed” in an
Office Depot parking lot on July 29, 2009, where “Ahamed” gave them a key to
the hotel room that was to be the site of the counterfeiting operation. Ndemba
drove Jalla from the Office Depot parking lot to the hotel where the
counterfeiting was to occur, which is where Ndemba and Jalla were both
arrested.
As noted above, Jalla cooperated with FBI agents and demonstrated his
scheme to them shortly after his arrest. In addition, before meeting with
“Ahamed” at Office Depot, Jalla had rented a hotel room nearby where he had
stored his supplies. Agents searched that hotel room and found, inter alia,
stacks of paper cut to the size of United States currency, large stacks of
counterfeit currency, a hospital mask, a syringe, two pieces of white paper that
each bore the image of a $20 bill in white ink, two actual $100 bills with serial
numbers that matched the serial numbers on many of the counterfeit bills, and
bottles of chemicals wrapped in aluminum foil. Agents also searched a hotel
room that Jalla had rented in Chamblee, Georgia, and found a printer and ink
cartridges that Jalla testified he had used to make the counterfeit currency
found in his hotel room near New Orleans.
Jalla and Ndemba (collectively, “Defendants”) were initially charged with
conspiracy to commit mail fraud and wire fraud in violation of 18 U.S.C. §§ 1343and 371, and mail and wire fraud in violation of 18 U.S.C. §§ 1343 and 2. A
superseding indictment was brought against Defendants adding charges of
conspiracy to manufacture counterfeit United States currency in violation of 18
U.S.C. §§ 471 and 371, and manufacturing counterfeit United States currency
in violation of 18 U.S.C. §§ 471 and 2. A second superseding indictment charged
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Defendants with conspiracy to manufacture counterfeit United States currency
in violation of 18 U.S.C. §§ 471 and 371, and manufacturing counterfeit United
States currency in violation of 18 U.S.C. §§ 471 and 2. A jury convicted
Defendants of both counts of the second superseding indictment. Jalla was
subsequently sentenced to 33 months’ imprisonment, and Ndemba was
sentenced to 18 months’ imprisonment. Both Defendants now appeal, arguing
that there was insufficient evidence presented at trial to support their
convictions.
II. DISCUSSION
A. Standard of Review
Because Defendants properly preserved their challenge to the sufficiency
of the evidence supporting their convictions, we review “the evidence and all
inferences to be drawn from it in the light most favorable to the verdict to
determine if a rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Seale, 600 F.3d 473, 496
(5th Cir. 2010); see also United States v. Villarreal, 324 F.3d 319, 322 (5th Cir.
2003). “A jury is free to choose among reasonable constructions of the evidence.”
United States v. Pigrum, 922 F.2d 249, 254 (5th Cir. 1991). We also consider all
credibility determinations in the light most favorable to the jury’s verdict. See
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). Thus, our review is
“highly deferential to the verdict.” United States v. Harris, 293 F.3d 863, 869
(5th Cir. 2002).
B. Jalla’s Conviction for Manufacturing Counterfeit United States Currency
Under 18 U.S.C. § 471, “[w]hoever, with intent to defraud, falsely makes,
forges, counterfeits, or alters any obligation or other security of the United
States, shall be fined under this title or imprisoned not more than 20 years, or
both.” Thus, to be convicted under § 471, a person must (1) make counterfeit
United States currency and (2) do so with intent to defraud, meaning the intent
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to cheat someone by making that person think the counterfeit currency was real.
See United States v. Porter, 542 F.3d 1088, 1091 (5th Cir. 2008); Fifth Circuit
Pattern Jury Instructions (Criminal) § 2.24. Under 18 U.S.C. § 2(a), one who
aids or abets the commission of an offense, in this case making counterfeit
obligations under § 471, is punishable as a principal.
In contesting his conviction, Jalla contends that he lacked the intent to
defraud required to violate § 471. Jalla asserts that he “intended nothing more
than to commit a theft” and did not intend to cheat his victim by making him
believe the fake currency that he manufactured was genuine. He focuses on the
fact that, at the end of his scheme, the counterfeit bills he had made and would
have left in the victim’s possession would be worthless pieces of paper blackened
by iodine. This paper, Jalla argues, could never have been mistaken for genuine
currency. Thus, Jalla contends that he could not have intended the counterfeit
bills that he had manufactured to be mistaken for genuine currency, as required
by § 471. Jalla also asserts that the fake currency he made would not fit within
the definition of “counterfeit,” because in its blackened form, it would lack a
semblance to actual United States currency.
Jalla’s arguments, however, are unavailing in light of his testimony and
the details of his scheme. At trial, Jalla flatly responded, “Yes,” when asked,
“Did you make counterfeit money?” Further, Jalla testified that he planned to
switch the victim’s real currency for the fake currency Jalla had manufactured.
Jalla then planned to use the fake currency in the purported counterfeiting
process, which he would conduct in front of the victim. Consequently, it would
have been essential that the victim continue to believe that the bills Jalla would
handle were the genuine ones the victim had supplied. Jalla testified that, at
this stage of the scheme, he would “put the light a little bit lower” so that the
fake currency looked like genuine currency. Thus, it is clear that Jalla intended
to deceive his victim and convince him that the counterfeit currency was, in fact,
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actual currency. Jalla also testified that his aim was to “lead [‘Ahamed’] to
believe that it was counterfeit and real money he was going to walk out of that
hotel room with.” As a consequence, Jalla’s testimony provided a sufficient basis
for a reasonable jury to conclude that Jalla violated § 471 by making counterfeit
obligations with the intent that his victim think the fake currency was genuine.1
Jalla contends on appeal that there is insufficient evidence that the
currency made by Jalla was sufficiently similar to genuine currency to be
considered “counterfeit.” However, this court has stated that § 471 “does not
require a particularly high level or degree of similitude” and that a jury
instruction defining “counterfeit” as “hav[ing] a likeness or resemblance to
genuine currency” “substantially and sufficiently covered the meaning of the
term.” Porter, 542 F.3d at 1091, 1094–95. As discussed above, Jalla flatly
admitted that he made counterfeit money. Furthermore, the fake currency that
Jalla made needed to look a great deal like genuine currency, or the victim of the
scheme would notice that the actual currency he had provided was no longer
being used in the counterfeiting process after Jalla had furtively replaced the
real currency with the bills he had made beforehand. Thus, the evidence
strongly suggests that the currency Jalla made fell within the definition of
“counterfeit,” at least at this critical stage in Jalla’s scheme. In addition, the
fake currency found in Jalla’s hotel room near New Orleans alongside his
counterfeiting supplies was admitted into evidence and was available for
1
Foster v. United States, 76 F.2d 183 (10th Cir. 1935), dealt with a similar situation.
In Foster, the defendants were convicted of altering currency with intent to defraud. Id. at
184. The defendants had altered the serial numbers of $5 bills so that the numbers would be
identical and it would appear that defendants had manufactured this currency through their
counterfeiting process. Id. The court stated that “[i]t is enough if an alteration is made in
furtherance of a scheme to defraud . . . . An alteration made as a material part of a scheme
to defraud any person comes within the terms of the statute [criminalizing alteration of an
obligation of the United States with intent to defraud].” Id.; see also Barnett v. United States,
384 F.2d 848, 854–55 (5th Cir. 1967) (discussing Foster and noting that the Foster court was
interpreting what is now § 471).
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inspection by the jury. This provides further support for the conclusion that the
bills made by Jalla sufficiently resembled real money to be considered
“counterfeit” within the meaning of § 471.
Jalla stresses that the fake currency the victim would receive at the end
of the scheme could never be put into circulation. He suggests that “Congress
implicitly intended to criminalize manufacturing counterfeit money under 18
U.S.C. § 471 in order to prevent counterfeit money from being placed into
circulation.” However, § 471, by its terms, criminalizes “falsely mak[ing] . . . any
obligation or other security of the United States.” It “does not require or
mention circulating . . . counterfeit notes.” United States v. Patterson, 812 F.2d
1188, 1191 (9th Cir. 1987). Passing or dealing in counterfeit obligations is
criminalized separately. See 18 U.S.C. §§ 472–73. Thus, whether the
manufactured currency that Jalla’s victim ultimately would possess was not in
any condition for circulation has no bearing on the analysis of whether Jalla
violated § 471.2
Jalla further asserts that his efforts to convince his victim that the money
he made was genuine would have merely amounted to “puffing” about the
quality of his goods. This court has stated that “non-actionable ‘puffery’ comes
in at least two possible forms: (1) an exaggerated, blustering, and boasting
statement upon which no reasonable buyer would be justified in relying; or (2)
a general claim of superiority over comparable products that is so vague that it
can be understood as nothing more than a mere expression of opinion.” Pizza
Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 497 (5th Cir. 2000). Making
2
Similarly, Jalla contends that, under United States v. Wolfe, 307 F.2d 798 (7th Cir.
1962), “a defendant could only have intent to defraud if he knowingly passed counterfeit bills
to a third party whom the defendant knew would spend the money.” Wolfe, however, dealt
with the conviction of a defendant for passing or uttering counterfeit obligations under § 472,
an offense that required counterfeit bills to be circulated. Id. at 800. As discussed above,
§ 471 does not require circulation. Consequently, Wolfe is not relevant to our analysis.
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counterfeit currency with the intent of covertly switching it with actual currency,
however, involves far more than merely overstating the quality of the counterfeit
currency Jalla had made. Thus, we reject Jalla’s argument that his actions
would have been mere puffing.
Finally, Jalla, whose native language is French, contends that he had
difficulty understanding and answering the questions posed to him at trial, and
thus that his testimony should not be considered sufficient to support his
conviction. However, Jalla testified in English, and translators were available
to assist Jalla throughout the trial. In addition, Saman, who had spoken with
Jalla on the telephone and in person, testified that he had no trouble
communicating with Jalla in English and that Jalla never indicated that he had
trouble comprehending what Saman said. Thus, the purported language barrier
affecting Jalla did not prevent his testimony from constituting sufficient
evidence to support the jury’s verdict. Cf. Kap Lam Thang v. Holder, 354 F.
App’x 198, 200 (5th Cir. 2009) (rejecting petitioner’s argument that his inability
to understand English caused him to give inconsistent answers to questions).
C. Defendants’ Convictions for Conspiracy to Manufacture Counterfeit United
States Currency
In challenging his conviction under 18 U.S.C. §§ 371 and 471, Jalla
adopted the arguments made by Ndemba on appeal. Thus, we examine
Defendants’ conspiracy convictions together. As noted above, Jalla and Ndemba
were convicted of conspiring to manufacture counterfeit currency in violation of
§§ 471 and 371. Conviction for conspiracy under § 371 requires the government
to prove beyond a reasonable doubt that (1) there was “an agreement between
two or more persons to pursue an unlawful objective; (2) the defendant[] kn[ew]
of the unlawful objective and voluntary agree[d] to join the conspiracy; and (3)
an overt act [was committed] by one or more of the members of the conspiracy
in furtherance of the objective of the conspiracy.” United States v. Coleman, 609
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F.3d 699, 704 (5th Cir. 2010) (citations omitted). “‘The essence of the crime of
conspiracy is the agreement rather than the commission of the objective
substantive crime. Conspiring to commit a crime is an offense separate and
distinct from the crime which may be the object of the conspiracy.’” United States
v. Cantu, 557 F.2d 1173, 1176–77 (5th Cir. 1977) (quoting United States v. Nims,
524 F.2d 123, 126 (5th Cir. 1975)). “The jury may infer a conspiracy agreement
from circumstantial evidence . . . and may rely upon presence and association,
along with other evidence, in finding that a conspiracy existed.” United States
v. Robles–Pantoja, 887 F.2d 1250, 1254 (5th Cir. 1989) (citations omitted).
Defendants’ convictions for conspiracy under § 371 are predicated on a
single unlawful objective—violating § 471 by making counterfeit obligations with
intent to defraud. As Jalla did in contesting his conviction under §§ 471 and 2,
Defendants argue that the scheme at issue did not involve violating § 471.
However, as discussed above, the scheme did, in fact, involve violating § 471, and
thus Defendants’ conspiracy convictions are properly based on the unlawful
objective to commit this violation.
Jalla and Ndemba also contend that there was no agreement between two
or more persons to pursue the unlawful objective of violating § 471. They argue
that Ndemba (1) did not have knowledge that the scheme to steal $60,000
involved making counterfeit obligations and (2) did not participate in making the
counterfeit bills used in the scheme. According to Defendants, Jalla acted alone
in making the counterfeit bills in his hotel room in Georgia. At trial, Jalla
testified that Ndemba had no knowledge at all of the scheme and that, during
the trip to New Orleans that ended in the Defendants’ arrest, Ndemba thought
Jalla was conducting some form of legitimate business. Jalla testified that he
never discussed his scheme with Ndemba and that Ndemba merely functioned
as his driver throughout their trips to and from New Orleans. Jalla also testified
that Ndemba was never within earshot of his conversations about the scheme.
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Thus, according to Defendants, there is insufficient evidence to support the
convictions for conspiracy because Ndemba did not know about the scheme and
thus could not have agreed to participate in Jalla’s unlawful objective.
Despite Jalla’s testimony to the contrary, however, considerable evidence
was presented at trial that Ndemba did have knowledge that the scheme
involved counterfeiting and that he voluntarily agreed to pursue this unlawful
objective with Jalla. Ndemba did not testify at trial. However, he did sign a
sworn statement, admitted into evidence at trial as the Government’s Exhibit
26.3 Joshua Kocher (“Kocher”), a Special Agent of the United States Secret
Service, initially drafted the statement, and Ndemba made three minor revisions
and one addition. Ndemba’s statement ultimately provided:
I met Jalla in Atlanta about three months ago. He introduced me
to a money making scam involving making people think he [was]
making CFT money through a complex process involving chemicals.
About a week ago I came to New Orleans with Jalla to find people
to scam. He found a Middle Eastern guy who was willing to give
him $30,000 in exchange for three times that amount. We were
never able to find someone to successfully scam in the past. Jalla
asked me to take him around to meet people.4
In addition, during the recorded conversation between Jalla and Saman (posing
as “Ahamed”), Jalla discussed the need to select a good hotel to conduct the
counterfeiting operation, voicing concerns about arousing suspicion if security
were to see “two white people and two blacks going into a room.” Jalla’s
reference to “two blacks” could have supported the inference that both Jalla and
3
Ndemba refers to the statement as one he “purportedly” made, but does not argue that
its contents should be disregarded or considered unreliable.
4
Ndemba revised the statement originally drafted by Kocher, replacing “we” with “he”
in the second and fifth lines and “us” with “him” in the sixth line. Ndemba added the final
sentence in his own handwriting.
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Ndemba planned to be in the hotel room as the counterfeiting scheme was being
conducted.5
Testimony from law enforcement also provided a basis for Defendants’
convictions under §§ 371 and 471. Saman testified that he met both Defendants
in the Office Depot parking lot and talked with both of them about the scheme.
According to Saman, both Defendants expressed anxiety about being observed
by the police.6 Special Agent John Waitkus (“Waitkus”) of the FBI testified that
“Mr. Jalla stated that he . . . would pay Mr. Ndemba 15 to $20,000 depending on
the amount of money he scammed out of someone.”7 Waitkus further testified
that Jalla stated that both Ndemba and Jalla were going to conduct the scheme.
Waitkus also testified that Ndemba told him that “he’d been out of work for quite
some time so he needed to come to New Orleans to assist Mr. Jalla in the scam
to collect money.” Kocher testified that, while conducting surveillance, he had
seen both Defendants speaking with “Nick,” the confidential informant, at
Harrah’s Casino.
Jalla and Ndemba focus on the portion of Ndemba’s sworn statement that
stated that the scam involved making people think the Defendants were making
counterfeit obligations. They contend that this necessarily implies that, to the
best of Ndemba’s understanding, counterfeit bills would not actually be made.
However, given Ndemba’s admission in the sworn statement that he participated
in the scheme, Ndemba’s other incriminating statements made to law
5
Jalla testified that he was not referring to himself and Ndemba as the “two blacks”
who were going to enter the room. He denied that Ndemba would have gone into the hotel
room where the counterfeiting was to occur and explained that his reference to “two blacks”
was just a figure of speech connoting two males.
6
Kocher also testified that he witnessed both Defendants speak to “Ahamed” in the
Office Depot parking lot.
7
Jalla disputed this and testified that he had agreed to pay Ndemba between $1,500
and $2,000. Like Waitkus, however, Kocher testified that he believed Ndemba was to be paid
between $15,000 to $20,000, depending on the success of the scam.
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enforcement agents, Jalla’s testimony suggesting that Ndemba would be in the
room where the scheme would be conducted, and Ndemba’s proximity to Jalla
during key moments of the scheme, there was sufficient evidence for a jury to
have concluded beyond a reasonable doubt that Ndemba knew the scheme
involved making counterfeit bills with the intent that a victim believe the bills
were real.
Defendants further stress that there is no evidence that Ndemba
participated in the actual making of counterfeit bills. However, Defendants’
convictions for conspiracy do not require Ndemba’s commission of the unlawful
act that was the object of the conspiracy. See 18 U.S.C. § 371. As discussed
above, the crime of conspiracy is distinct from the unlawful objective
conspirators agree to pursue. See Cantu, 557 F.2d at 1176–77. This court’s
opinion in United States v. Porter, 542 F.3d 1088 (5th Cir. 2008), is instructive
on this point. Defendant Crystal Porter (“Porter”) appealed her conviction under
18 U.S.C. § 371 of conspiring to make counterfeit obligations in violation of 18
U.S.C. § 471, asserting, inter alia, that there was insufficient evidence to support
her conviction.8 Id. at 1089. Joey Barrett (“Barrett”) and his common-law wife,
Erica Horton (“Horton”), agreed to settle a debt with a drug dealer named Carlos
by making counterfeit currency. Id. Horton met with Porter, who inspected the
fake currency that Carlos and Horton had made and agreed to accept the fake
bills at her cash register at Wal-Mart. Id. at 1090. The next day, Porter allowed
Horton and Barrett to purchase $500 in Wal-Mart gift cards with fake currency.
Although Porter did not actually make any counterfeit currency, this court
upheld her conviction for conspiracy to make counterfeit obligations, noting that
“the bills themselves constitute evidence from which a rational jury . . . could
have found beyond a reasonable doubt that . . . before she participated in the
8
Porter was convicted of conspiracy to pass counterfeit obligations under § 472 as well.
See Porter, 542 F.3d at 1090.
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actual passing of the bogus instruments at the Wal-Mart where she worked,
Porter affirmatively joined the ongoing conspiracy to make counterfeit
obligations . . . .” Id. at 1092. Thus, the lack of evidence that Ndemba actually
made counterfeit bills does not signify that there was insufficient evidence to
support his conviction for conspiracy under § 371. We conclude that sufficient
evidence supports Defendants’ convictions under §§ 371 and 471.
D. Ndemba’s Conviction for Manufacturing Counterfeit United States Currency
“To convict a defendant of aiding and abetting under 18 U.S.C. § 2, the
Government must prove (1) that the defendant associated with the criminal
venture, (2) participated in the venture, and (3) sought by action to make the
venture succeed.” United States v. Gallo, 927 F.2d 815, 822 (5th Cir. 1991)
(citation omitted); see also United States v. Stewart, 145 F.3d 273, 277 (5th Cir.
1998). “To associate with the criminal venture means that the defendant shared
in the criminal intent of the principal.” United States v. Jaramillo, 42 F.3d 920,
923 (5th Cir. 1995). “To participate in the criminal activity means that the
defendant acted in some affirmative manner designed to aid the venture.” Id.(citation omitted). Evidence that supports a conviction for conspiracy can also
support a conviction for aiding and abetting. See Gallo, 927 F.2d at 822.
Ndemba raises the same arguments with regard to his conviction under
§§ 471 and 2 as he did in contesting his conviction under §§ 371 and 471. He
insists that there is no evidence that he (1) knew Jalla’s scheme involved making
actual counterfeit obligations or (2) assisted Jalla in the manufacture of
counterfeit bills. However, as discussed above, there is sufficient evidence that
Ndemba knew that the scam required the manufacture of counterfeit currency.
Also, as noted above, Ndemba engaged in affirmative conduct aimed at making
the venture succeed, including renting a car and driving Jalla from New Orleans
to Georgia, where Jalla made the counterfeit bills in preparation for the
conclusion of Defendants’ scheme. Furthermore, there is evidence that Ndemba
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stood to share in the profits of the venture’s success. Thus, there is sufficient
evidence to uphold Ndemba’s conviction under §§ 471 and 2.
III. CONCLUSION
For the reasons stated above, we AFFIRM Defendants’ judgments of
conviction.
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