U.S. v. Ndiaye, No. 04-11283.

• Citation: 434 F.3d 1270
• Decision Date: 06 January 2006
• Docket Number: No. 04-11283.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Amadou Fall NDIAYE, Malene Diaw, Agung Sumbodo, Emmanuel Aimasiko, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

434 F.3d 1270

UNITED STATES of America, Plaintiff-Appellee, v. Amadou Fall NDIAYE, Malene Diaw, Agung Sumbodo, Emmanuel Aimasiko, Defendants-Appellants.

No. 04-11283.

United States Court of Appeals, Eleventh Circuit.

January 6, 2006.

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Louis Levenson (Court-Appointed), Levenson & Associates, Stanley M. Baum (Court-Appointed), Bates & Baum, Steven P. Berne (Court-Appointed), Law Office of Steven Berne, Atlanta, GA, James W. Howard (Court-Appointed), The Howard Law Firm, P.C., Tucker, GA, for Defendants-Appellants.

Teresa Hoyt, Amy Levin Weil, U.S. Atty., Susan Coppedge, Atlanta, GA, for U.S.

Appeals from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and KRAVITCH, Circuit Judges, and MILLS^*, District Judge.

MILLS, District Judge:

We deal here with illegal aliens and Social Security fraud.

Of the original 28 defendants indicted, we are concerned with only four of them: Ndiaye, Sumbodo, Aimasiko and Diaw.

The copious and voluminous record here lays the case before us, including a three-week jury trial and a sentencing hearing.

In sum, we affirm.

I. INTRODUCTION

On November 20, 2002, a grand jury returned an indictment charging Amadou Fall Ndiaye, Agung Sumbodo, Emmanuel Aimasiko, Malene Diaw and 24 other defendants with violating 18 U.S.C. § 371 by a conspiracy to commit identification documentation fraud and Social Security fraud, in violation of 18 U.S.C. § 1028(a)(1), (2) and (6) and 42 U.S.C. § 408(a)(6); and conspiracy to encourage and induce aliens to unlawfully enter and reside illegally in the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv). Aimasiko, Ndiaye, and Sumbodo were also charged with substantive counts of encouraging and inducing aliens to reside illegally in the United States, in violation of § 1324(a)(1)(A)(iv) (Counts 20, 27, and 28). Sumbodo and Diaw were also charged with substantive counts of making false statements in an application for a Social Security number, in violation of 18 U.S.C. § 1001(a) (Counts 4 and 6).

On February 18, 2003, the Government filed a superseding indictment alleging 41 counts against the same 28 defendants. The charges against these four individuals remained the same.

The jury trial began on October 27, 2003. On November 18, 2003, guilty verdicts were returned against all four defendants. Diaw and Sumbodo were convicted of all crimes with which they were charged. Ndiaye and Aimasiko were convicted of conspiracy and acquitted of encouraging and inducing an alien to reside in the United States.

The district court imposed the following sentences:

(1) Ndiaye was sentenced to 15 months imprisonment for one count of conspiring to commit identification document fraud and Social Security fraud, in violation of 18 U.S.C. § 371;

(2) Sumbodo was sentenced to 44 months for one count of conspiring to commit Social Security fraud and immigration fraud, in violation of § 371, one count of making false statements on Social Security applications, in violation of 18 U.S.C. § 1001(a), and one count of encouraging aliens to reside in the United States, in violation of 18 U.S.C. § 1324(a)(1)(A)(iv) and 18 U.S.C. § 2;

(3) Aimasiko was sentenced to 21 months for one count of conspiring to commit Social Security fraud and immigration fraud, in violation of § 371; and

(4) Diaw was sentenced to 18 months for one count of conspiracy to commit Social Security fraud and immigration fraud, in violation of § 371, and one count of making false statements on Social Security applications, in violation of § 1001(a).

All four defendants filed timely notices of appeal. Diaw has served her sentence and been deported. Ndiaye is on bond pending appeal. Aimasiko and Sumbodo were serving their sentences at the time the briefs were filed in this appeal. For the reasons given herein, we affirm the Appellants' convictions and sentences.

II. FACTS

The Government alleges that Matar Fall, who was also indicted and was the ringleader of the conspiracy involving Sumbodo, Diaw (Fall's wife), Ndiaye and Aimasiko, paid a Social Security Administration employee, Celestine Huger, to fraudulently issue Social Security numbers to aliens who were not legally entitled to them. Huger worked as a claims clerk at the Social Security Administration. She would process the Social Security number applications based on fraudulent immigration documents, including visas and accompanying documents, provided by Fall. Sumbodo and Diaw also fraudulently obtained a Social Security card and a replacement Social Security card, respectively, using fraudulent immigration documents provided by Fall. The conspiracy lasted from April 1999 to November 2002.

The Government contends that Fall worked with numerous co-defendants, including Aimasiko, Ndiaye and Sumbodo, who acted as middlemen and referred aliens to Fall to purchase fraudulently obtained Social Security numbers. The Government notes that it called as witnesses approximately fourteen individuals who it refers to as "customers," because they purchased fraudulently obtained Social Security numbers from Fall via middlemen. These customers all testified about the similar procedure they followed to obtain their fraudulent Social Security cards. The customers testified they paid from $250 to $2,000 for their fraudulently obtained Social Security numbers.

The Government alleges that Fall sold the co-defendants and their customers fraudulent visas and Form I-94s. The illegal aliens needed fraudulent immigration documents with an immigration classification that allowed the Social Security Administration to issue them Social Security numbers. The aliens would then use the fraudulently procured Social Security cards to obtain work.

From 1999 to 2002, a Form I-94 was a document issued by the United States Immigration and Naturalization Service ("INS") (now the Department of Homeland Security) which accompanied the alien's visa. The I-94 documented the non-immigrant classification of the alien, such as tourist, or visitor for pleasure or business or student. The alien's classification was also listed on his or her visa, and both the I-94 and visa were placed in the alien's passport and discussed with the alien by INS at the point of entry into this country. The alien's classification determined whether he or she could legally live and work in this country. The alien customers in this scheme were not lawfully entitled to Social Security numbers, because their classification did not lawfully allow them to remain and work in the United States.

The Government asserts that Sumbodo's actions assisted over seventy Indonesian aliens in securing Social Security numbers. Sumbodo was making money himself by charging his Indonesian customers more than Fall charged him. Sumbodo drove his customers to the Social Security office. Moreover, he received at least seventeen fraudulently obtained Social Security cards at his apartment address. The Government alleges that Sumbodo successfully recruited co-defendant Robert Soeryanto and Sasikin,¹ two Indonesians who purchased Social Security numbers from him, to refer him customers. Sumbodo asked Soeryanto to receive seven fraudulently obtained Social Security cards for Sumbodo's customers at Soeryanto's apartment. Sasikin referred approximately fifty customers.

The Government alleges that Aimasiko referred approximately twenty Nigerian individuals to Fall for assistance in securing fraudulently obtained Social Security numbers. Ten Social Security cards were mailed to Aimasiko's address. Fall paid $50.00 for each Social Security card that was mailed to his address. Aimasiko also assisted in the scheme by driving Fall and customers to the Social Security office. The Government contends that Fall charged Aimasiko $600 per customer, but Aimasiko charged the customers up to $1,000.

The Government contends that during the course of the conspiracy, Ndiaye was responsible for thirteen fraudulently obtained Social Security numbers for Senegalese customers. Six fraudulently obtained Social Security cards were mailed to Ndiaye's business address at 185 Mitchell Street, with others going directly to the customer. Fall testified that Ndiaye referred him customers, some of whom Fall would pick up at Ndiaye's hair braiding shop, and sometimes handed him the customer's money and passport.

The Government alleges that customers Kaire Ndao and Aida Leye testified that Fall picked them up at Ndiaye's shop and took them to apply for Social Security numbers. Ndiaye allowed them to stay at his home overnight when they traveled from out of state to obtain their Social Security numbers. Ndiaye also picked up Leye at the airport.

The Government asserts that Diaw assisted her husband, Fall, in the conspiracy by receiving customers' fraudulently obtained Social Security cards at her hair braiding shops. Ten fraudulently obtained Social Security cards were mailed to Diaw's business addresses. Fall testified that Diaw would notify him when a card came to one of the hair braiding shops. Occasionally, Diaw brought the Social Security cards home to Fall. Additionally, eight fraudulently obtained Social Security cards were mailed to Diaw's address.

The Government alleges that Diaw told customer Penda Pene she needed a Social Security number to work in this country and told Pene to talk to Fall about purchasing a fraudulent Social Security number. Diaw collected money and passports from customers. Diaw posed as customer Haddy Sanyang at the Social Security office and applied for Sanyang's Social Security number using fraudulent documents. Diaw also gave Anin Alexis his passport and application for a Social Security number when Alexis came to her apartment.

Sumbodo, Aimasiko, Ndiaye, and Diaw challenge several rulings made by the district judge at trial. Their appeals also present...