United States v. Kenney ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0122n.06
Filed: February 15, 2007
05-2480
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DAWAN K. KENNEY, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: DAUGHTREY and COOK, Circuit Judges, and WEBER,* District Judge.
PER CURIAM. The defendant, Dawan Kenney, was convicted of transporting
aliens within the United States for commercial advantage or private financial gain, in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i), and was sentenced to a term of 16
months in prison. On appeal, she challenges the sufficiency of the convicting evidence
and objects to the introduction at trial of certain evidence that she maintains was
inadmissible hearsay. Because we find no reversible error, we affirm the judgment of the
district court.
FACTUAL AND PROCEDURAL BACKGROUND
*
The Hon. Herm an J. W eber, United States District Judge for the Southern District of Ohio, sitting by
designation.
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United States v. Kenney
The trial record establishes that the defendant first came to the attention of federal
authorities through a tip from Ronald Kaye, the deck hand on a ferry that travels between
the Clay Township and Harsens Island, Michigan. Aliens coming in by way of Canada are
frequently smuggled from Harsens Island via the ferry to the mainland less than a mile
away, and Kaye often assisted the police, keeping an eye out for suspicious activity and
calling the police when he suspected some form of smuggling. He testified that on the
evening of November 6, 2003, he observed the defendant board the ferry in her vehicle
and remembered seeing her on the ferry a few days earlier. On that occasion, she had
taken the ferry to Harsens Island and returned a short while later with a number of people
in her car. Although this struck Faye as suspicious at the time, he could not remember
how many people were in the car on the way to the island, and so he did not call the police.
However, when the defendant boarded the ferry again on November 6, Faye paid particular
attention to the number of people in the vehicle. It is unclear from the record on appeal
whether Faye observed the defendant board the ferry alone or with one passenger in her
vehicle, but it is clear that when she returned a short while later, there were seven people
in her vehicle, counting Kenney. Kaye therefore called ahead to the Clay Township police,
who met the ferry on the dock at the mainland side.
Border patrol agents soon arrived on the scene and questioned Kenney and her
passengers. Agent Andrew Sproul, the first agent on the scene, testified that he conducted
an immigration check on each of the individuals. Kenney, who was in the driver’s seat of
the vehicle, and her boyfriend, David Wright, who was sitting in the passenger’s seat, both
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produced identification confirming that they were United States citizens. The passenger
sitting directly behind Kenney, who had a thick Caribbean accent, identified himself as
Joseph Johnson, produced a Florida driver’s license, and claimed to be a United States
citizen. It was later determined that “Joseph Johnson” was a false name and his real
identity was Dennis Jackson, a Jamaican citizen. The remaining four passengers, Sherali
Lakhani, his wife, Amina Lakhani, their minor son, Asad Lakhani, and another unrelated
man, Salim Khemani, did not speak fluent English but were nonetheless able to identify
themselves as Indian citizens who had just been picked up by the defendant.
Agent Christopher Geoffroy, the supervising agent on the night of November 6,
testified that he arrived on the scene shortly after Agent Sproul and separately interviewed
each of the three individuals claiming to be United States citizens. The defendant told
Geoffroy that earlier that day, she had picked up her boyfriend, that they went to a bowling
alley, and that from there they decided to go to a bar on the island because it was a “great
place to party.” She first said that Joseph Johnson was her cousin’s boyfriend and was just
going along for the ride but later described Joseph Johnson as a friend. She explained
that she had picked up the four Indian citizens as a favor for another friend.
David Wright’s account of the day differed from Kenney’s. Wright told Geoffroy that
Kenney had picked him up at his house in Detroit at 9 p.m. and that they had driven
straight to the island, and he denied that they had been bowling that day. Agent Geoffroy
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related this conversation over a hearsay objection by defense counsel, but the objection
was summarily overruled on the basis of the co-conspirator exception.
When Geoffroy interviewed the man later identified as Dennis Jackson, he again
produced the false paperwork bearing the name Joseph Johnson, explained that his
accent was the result of spending time with people originally from the Caribbean living in
the area of Florida where he grew up, and stated that he was in the car because Kenney
was giving him a ride to his girlfriend’s house.
Based on the inconsistencies in the individual stories, Geoffroy arrested the
defendant, Wright, and Jackson on charges of smuggling and transported them to the
border patrol station. There, Kenney was interviewed again by Geoffroy and on two
occasions by another border patrol agent, Glenn Lendel. Lendel testified that in his first
interview with Kenney, she continued to deny responsibility for smuggling, as she had with
agent Geoffroy. In the subsequent interview, however, he confronted Kenney with the
information that the ferry deck hand remembered her from a few days earlier, and Kenney
confessed that she had knowingly engaged in smuggling on both occasions, explaining
that she had been hired by a third party to transport the aliens and paid $600 for the
previous occasion and that she expected a similar amount for the most recent incident.
Kenney described in detail the arrangements that she had followed and identified the
others who were involved in the smuggling operation. She also provided the agents with
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United States v. Kenney
her cell phone, from which the agents recovered the phone number of a known alien
smuggler.
Sherali Lakhani, one of the Indian men in Kenney’s vehicle, also testified at
Kenney’s trial. He explained that he had paid a smuggler $2,000 per person to transport
him and his family from Canada to the United States because he could not find work in
Canada. Most pertinent to Kenney’s case, he testified that as part of this journey, he
arrived on a dock and saw a woman that looked like Kenney standing by a vehicle and
motioning for him and his family, along with the two other aliens, to come quickly into her
vehicle. He also testified that after they all got in the vehicle and arrived on the mainland,
Kenney noticed the police and motioned for them to duck down.
Based on this evidence, the district judge, sitting as fact-finder, found the defendant
guilty. She now appeals the conviction.
DISCUSSION
The defendant contends that there was insufficient evidence to sustain her
conviction because “[u]nder the totality of the circumstances, the [defendant’s statements
after arrest] were not sufficiently proved to have been actually made.” To support this
argument, the defendant points to the circumstances surrounding her confession,
emphasizing the fact that it was not tape-recorded, and to alleged inconsistencies in the
agents’ testimony at trial, arguing that the testimony was not credible and should not have
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been accepted by the trial judge. However, the defendant fails to identify a lack of
evidence as to any specific element of the crime and, based on our examination of the
record, we find none.
We review the sufficiency of the convicting evidence in a criminal trial under the
standard announced in Jackson v. Virginia, 443 U.S. 307 (1979). Under that well-
established authority, the relevant inquiry is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original).
Moreover, we have “long recognized that we do not weigh the evidence, consider the
credibility of witnesses or substitute our judgment for that of the [fact finder]” when
addressing sufficiency of the evidence. United States v. Hilliard, 11 F.3d 618, 620 (6th Cir.
1993). Yet, here, the defendant’s entire argument is premised on our making adverse
credibility determinations regarding the agents’ testimony, which, of course, we may not
do. See United States v. Sanders, 404 F.3d 980, 987 (6th Cir. 2005) (holding that
discrepancies in a witness’s testimony elicited on cross-examination “are irrelevant to the
sufficiency of the evidence analysis because they improperly ask us to weigh the evidence
or to assess [the witness’s] credibility.”).
The defendant’s reliance on Crane v. Sowders, 889 F.2d 715 (6th Cir. 1989), in
support of her argument is misplaced. In Crane v. Kentucky, 476 U.S. 683, 689 (1986),
the Supreme Court held that it was constitutional error for the trial court to exclude
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evidence regarding the circumstances of the defendant’s confession, even though the
defendant had previously lost a motion to suppress the confession, and the Court
remanded the case for consideration of whether the error was harmless. In Crane v.
Sowders, we then held that the error was not harmless. See 889 F.2d at 718. In this case,
however, the defendant does not allege that the trial judge excluded any evidence or
refused to consider the circumstances of the confession when making its credibility
determinations; to the contrary, the record on appeal indicates that evidence regarding the
reliability of the confession was presented at trial and was the subject of comment by the
district judge, who specifically found the agents’ testimony credible despite the fact that the
defendant’s confession was not tape-recorded.
Applying the correct standard, it is clear that there was sufficient evidence presented
at trial to convict Kenney of transporting aliens within the United States for commercial
advantage or private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i).
Under the statute, the government had to prove that Kenney’s passengers were aliens
unlawfully in the United States, that Kenney had knowledge of or a reckless disregard for
this fact, and that Kenney transported or attempted to transport the aliens for commercial
advantage or private financial gain. Id.
Viewed in the light most favorable to the government, the testimony presented at
trial undoubtedly established each of these elements. The testimony of the agents as well
as that of Sherali Lakhani established that five of Kenney’s six passengers were aliens
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unlawfully in the United States, and their testimony along with that of Ronald Kaye
established that Kenney transported the aliens from Harsens Island to the main land.
There was also ample testimony that Kenney knew that her passengers were aliens in the
United States unlawfully, including: Sherali Lakhani’s testimony that Kenney gestured for
her passengers to get in the car quickly and later gestured for them to duck down to avoid
detection by the police; the inconsistencies in Kenney’s explanation to the agents before
her arrest, as well as the incredible nature of her story; the suspicious circumstances of the
transport in general, including the time of day, her quick return from the island, and
Kenney’s unfamiliarity with five of her passengers and inability to communicate with four
of them; and, finally, Kenney’s own confession. There was also ample evidence that
Kenney undertook the transport for financial gain: Sherali Lakhani testified that he had paid
$6,000 to a smuggler, indicating that the entire operation was a commercial transaction
rather than a favor; Ronald Kaye testified that he had seen Kenney make a quick trip to the
island and return with multiple passengers in the past, suggesting that Kenney was not
simply doing a favor for a friend but rather was part of an on-going enterprise; the agents’
testimony that the telephone number of a known smuggler was found in Kenney’s cell
phone records; and Kenney’s admission that she had received $600 from her previous
transport and expected to receive a similar sum for her November 6 trip. From all of this,
there can be no doubt at all that the defendant’s conviction is supported by legally sufficient
evidence.
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United States v. Kenney
Nor do we find any reversible error in connection with the introduction of the agent’s
summary of Wright’s statement that he and Kenney had not gone bowling on November
6, introduced to impeach her credibility. The district court ruled that Wright’s out-of-court
statement was admissible as the declaration of a co-conspirator, a ruling that appears
somewhat dubious given the lack of evidence in the record that Kenney and Wright were
actually engaged in a conspiracy. However, we conclude that the out-of-court statement
by Wright was not hearsay under Federal Rule of Evidence 801(c), because it was not
offered to prove that the declarant did not go bowling on November 6, but only that he said
as much. Moreover, as non-hearsay the testimony does not implicate any Sixth
Amendment concerns such as those raised in Crawford v. Washington, 541 U.S. 36
(2004). Even if the testimony could be taken as hearsay, moreover, we conclude that any
error was harmless in view of the overwhelming evidence of the defendant’s guilt.
CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court in all
respects.
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