728 Fed.Appx. 120 (3rd Cir. 2018), 16-4247, United States v. Faye

• Docket Nº: 16-4247
• Citation: 728 Fed.Appx. 120
• Opinion Judge: RESTREPO, Circuit Judge.
• Party Name: UNITED STATES of America v. Assane FAYE Appellant
• Attorney: Mark E. Coyne, Esq., Office of United States Attorney, Newark, NJ, Glenn J. Moramarco, Esq., Office of United States Attorney, Camden, NJ, for Plaintiff-Appellee Andrea D. Bergman, Esq., Alison Brill, Esq., Office of Federal Public Defender, Trenton, NJ, for Defendant-Appellant
• Judge Panel: Before: RESTREPO, GREENBERG and FISHER, Circuit Judges.
• Case Date: April 03, 2018
• Court: United States Courts of Appeals, Court of Appeals for the Third Circuit

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728 Fed.Appx. 120 (3rd Cir. 2018)

UNITED STATES of America

v.

Assane FAYE Appellant

No. 16-4247

United States Court of Appeals, Third Circuit

April 3, 2018

NOT PRECEDENTIAL

Submitted Under Third Circuit L.A.R. 34.1(a) December 11, 2017

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

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On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-15-cr-00151-001), District Judge: Honorable Peter G. Sheridan

Mark E. Coyne, Esq., Office of United States Attorney, Newark, NJ, Glenn J. Moramarco, Esq., Office of United States Attorney, Camden, NJ, for Plaintiff-Appellee

Andrea D. Bergman, Esq., Alison Brill, Esq., Office of Federal Public Defender, Trenton, NJ, for Defendant-Appellant

Before: RESTREPO, GREENBERG and FISHER, Circuit Judges.

OPINION^[*]

RESTREPO, Circuit Judge.

Following a jury trial, Assane Faye was convicted of embezzlement and mail fraud. On appeal, he raises a number of challenges to his conviction. For the reasons set forth below, we will affirm in part, vacate in part and remand for further proceedings.

I

As we write solely for the benefit of the parties, we set out only the facts necessary for the discussion that follows. In 2009, Faye founded United Security and Police Officers of America (the "Union") from which he embezzled more than $300,000 over a three-year period from March 2010 through August 2013. The embezzlement scheme took two forms: (1) Faye’s hiring of his former girlfriend, Khady Gueye, who received a salary and expenses but performed no work for the Union and (2) Faye’s repayment of fraudulent expense vouchers that he submitted to the Union. Faye also fraudulently obtained $7,364 in unemployment benefits from the New Jersey Department of Labor while employed by the Union.

Faye’s personal relationship with Gueye ended in 1996, but in 2010 Faye hired Gueye as a consultant on the Union payroll, unbeknownst to Gueye. The consulting agreement called for Gueye to organize "unorganized security officers" at various

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sites throughout the state of New York and for her to report directly to Faye. App. 346. Although Gueye’s purported signature appears on the document, she did not in fact sign it or agree to provide any services to the Union. Despite her lack of experience in union organizing and limited English language skills, Faye told the Union’s executive board that Gueye was "highly recommended with extended experience in political and community organizing." App. 162. Faye did not tell the board of his prior personal relationship with Gueye.

Over the course of her "employment" by the Union, Gueye received $244,169 in salary and reimbursements. During much of this time, Gueye was actually in Senegal, where she resided for approximately six months of every year. Faye was in fact the beneficiary of these funds; he systematically withdrew from the account in which Gueye’s salary was deposited. More than 90 percent of the deposited money was withdrawn from ATMs in Toms River, New Jersey, near Faye’s home, while Gueye lived 90 miles away in New York City. The majority of the withdrawals occurred when Gueye was not in the United States.

The second part of Faye’s embezzlement involved fraudulent expense vouchers. Faye had his own checkbook for the Union account, and he regularly disbursed funds under his own signature for what were supposed to be union-related business expenses. The majority of Faye’s fraudulent reimbursements involved mileage expense claims for his business-related travel. Faye submitted all expenses as if he had used a personal vehicle, for which he was entitled to mileage, when in fact he regularly used a rental vehicle, for which he was not. This resulted in a larger reimbursement than if he had submitted car rental and gasoline expenditures. Moreover, Faye repeatedly fabricated the actual mileage he reported on his vouchers, totaling $94,000 over a three-year period. Supp. App. 17-18. The Government presented a random sample of Faye’s submitted vouchers that it had analyzed with Google maps to show that the miles Faye claimed on his vouchers were significantly higher than the expected mileage. Records from Enterprise Car Rental supported this finding: mileage Faye claimed on his vouchers was almost triple the mileage actually recorded on the vehicles he had rented. Faye also repeatedly billed the Union for domestic travel expenses during times when official customs records showed that he was actually outside of the country.

Lastly, Faye applied for and received unemployment benefits from New Jersey from March 21, 2010 through June 27, 2010. During that time, although not yet receiving a salary, he was working as president of the Union and writing checks for business reimbursements to himself from the Union’s bank account. Faye also travelled to France in May 2010, which likewise rendered him ineligible to receive unemployment benefits during that time since he was neither looking nor available for work while travelling abroad. During the three relevant months, Faye improperly received a total of $7,364 from the New Jersey Department of Labor.

Faye was charged with nine criminal counts. Count One was embezzlement from the Union through improper salary and disbursements to Gueye; Count Two was embezzlement from the Union through false reimbursement vouchers; and Counts Three through Nine were mail fraud resulting from false representations to the State of New Jersey in Faye’s application for unemployment benefits. A jury convicted Faye on all nine counts. He was sentenced to a total of 37 months’ imprisonment followed by a period of supervised

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release. App. 3. The District Court also ordered Faye to pay $244,169.78 in restitution on Count One, $74,000 on Count Two, and $7,364 for Counts Three to Nine. Faye timely appealed.

II¹

On appeal, Faye advances four arguments. First, he contends that there was insufficient evidence to support the jurys...