U.S. v. Diallo, 2:05-cr-0324.
| Decision Date | 06 March 2007 |
| Docket Number | No. 2:05-cr-0324.,2:05-cr-0324. |
| Citation | 476 F.Supp.2d 497 |
| Parties | UNITED STATES of America, v. Mamadou DIALLO, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Thomas Livingston, Federal Public Defender's Office, Pittsburgh, PA, for Defendant.
Paul E. Hull, United States Attorney's Office, Pittsburgh, PA, for United States of America.
On April 12, 2006, a jury convicted Defendant Mamadou Diallo (Diallo) of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320(a).1 Diallo's Motion for Judgment of Acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure is the subject of this Memorandum Opinion.
On October 26, 2005, a grand jury issued a one-count indictment charging Diallo with violating 18 U.S.C. § 2320(a). The indictment read, in pertinent part:
[Diallo] did intentionally traffic, and attempt to traffic, in goods, those being handbags, while knowingly using counterfeit marks on and in connection with such goods, specifically, spurious marks identical with, and substantially indistinguishable from, trademarks of Louis Vuitton Malletier, a French corporation [...] which marks were in use and were registered for those goods on the principal register of the United States Patent and Trademark Office, the use of any one of these counterfeit marks being likely to cause confusion, to cause mistake, and to deceive.
(Doc. No. 21, at 1). Diallo's jury trial began on April 10, 2006 and concluded two days later, when the jury found him guilty of that charge. Diallo timely filed the instant Motion, and the Government filed its Response to the Motion on January 19, 2007. On January 29, 2007, Diallo filed his Reply, and the record of the trial proceedings was transcribed by order of Court.
In the early morning hours of July 13, 2005, Trooper Timothy Callahan of the Pennsylvania State Police was patrolling Interstate 80 in Mercer County, Pennsylvania, when he noticed a van traveling without a license plate light. Callahan stopped the van — which was driven by Diallo and contained one passenger — with the intention of ticketing its driver.
After Diallo produced a driver's license and vehicle registration, he explained that he and his passenger were returning to Indianapolis from New York. When Callahan inquired as to the contents of several bags and boxes in plain view inside the vehicle, Diallo answered "clothes," and offered Callahan the opportunity to inspect the vehicle. Callahan discovered approximately 300 items of designer clothing, jewelry, and handbags bearing the trademarks of Louis Vuitton and other high-end designers. Diallo admitted that these items belonged to him and his passenger. Upon inspection, Callahan noted that the handles of the "Louis Vuitton" handbags in Diallo's van were wrapped in plastic, a packaging feature that distinguished them from real Louis Vuitton bags. Based on Callahan's knowledge, training, and experience, he concluded that these bags were counterfeit and he arrested Diallo and his passenger.
On July 22, 2005, Special Agent Sara Seidman of United States Immigration and Customs Enforcement (ICE) interviewed Diallo regarding his possession of counterfeit goods. Diallo told Seidman that he had been arrested in the past for selling counterfeit compact discs, but claimed to be unaware that it was illegal to sell the handbags he had purchased from various vendors in New York. Diallo stated that he purchased the handbags for approximately $40 each and sold them for approximately $50-$55 apiece at "Diallo's Clothing," his booth at a flea market in Indianapolis.
The Government's investigation revealed that Diallo had a history of selling knock-off designer products, including counterfeit handbags. Indianapolis Police Detective Andrew Starks and private investigator Donald Finch first encountered Diallo in the Peddler's Mall in Indianapolis in 2003, where they found him attempting to sell some 700 handbags. Diallo was arrested, acknowledged his culpability, and stated that his wife had "asked him to stop" selling this merchandise "several times" because she was "afraid." Diallo explained that he had purchased the items in bulk during trips to New York City every two months. Diallo eventually pleaded guilty to that charge in February 2004.
Later that year, however, Diallo was back in the business of selling knock-off designer merchandise. One of Diallo's customers, Jane Roudebush, testified that Diallo had sold her dozens of fake Louis Vuitton purses at the Peddler's Mall in 2004. Each time, Diallo assured Roudebush that the purses were authentic; on one occasion Diallo told her: "I go to Paris and I buy these myself." Diallo even attempted to persuade Roudebush to sell some of his purses out of her home at "purse parties." Upon inspecting a real Louis Vuitton purse at her local Saks Fifth Avenue retailer, however, Roudebush realized that Diallo's purses were fake. She promptly told Diallo that she would not sell any of his purses, and returned most of them without receiving a refund. In October 2004, Detective Starks and investigator Finch spotted Diallo selling counterfeit handbags and seized 700-800 items after Diallo fled the scene.
The jury also heard the testimony of Housseinou Diakhaby, the passenger in Diallo's van the night Trooper Callahan detained it. Diakhaby explained that he had operated a booth near Diallo's at the Peddler's Mall in 2004 and 2005. He stated that he had gone to New York City on two occasions with Diallo, and told the jury about the outdoor market where he had seen Diallo purchase the handbags. When Callahan detained the pair on their return from their second New York trip, Diallo initially attempted to cajole Diakhaby into claiming that the bags were his because Diallo "ha[d] a problem with a detective before on those items." Diakhaby refused, however, and testified that all but six or seven of the articles in the van belonged to Diallo. He also corroborated the testimony of Detective Starks and investigator Finch about Diallo's incriminating conduct following the October 2004 police raid on his stalls at the Peddler's Mall.2
On April 11, 2006, at the close of evidence, Diallo moved for judgment of acquittal on the ground that there was insufficient evidence to show that he had used any Louis Vuitton mark in connection with a good or service, a component of the Government's burden of proof under 18 U.S.C. § 2320(a). Because this theory presented an issue of first impression, this Court reserved its ruling on the motion and permitted the case to go to the jury without a definition of the term, as it appears in the statute. Late that afternoon, the Court received a question from the jury, which read:
The following day, on April 12, 2006, the Court solicited the arguments of counsel as to how the term "use" should be defined. After considering those arguments, reviewing the legislative history of Section 2320(a), and consulting various dictionary definitions of the word "use," the Court decided to give the word "use" its ordinary and natural meaning. The Court then instructed the jury quoting the Fifth Edition of Black's Law Dictionary (1979) as follows: "Definition of the word `use': To make use of, to put into action or convert to one's service, to avail oneself of, to have recourse to or enjoyment of, to employ." The Government accepted this instruction but Diallo objected only as to the final clause — "to have recourse to or enjoyment of." Later that day, the jury returned a guilty verdict.3
Federal Rule of Criminal Procedure 29(a) states that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." As Rule 29(a) makes clear, the "sole foundation upon which a judgment of acquittal should be based is a successful challenge to the sufficiency of the government's evidence." United States v. Carter, 966 F.Supp. 336, 340 (E.D.Pa.1997) (citation omitted); see also 2A Charles Alan Wright, Federal Practice and Procedure § 466 (3d ed.2000).
In considering a Rule 29 motion for judgment of acquittal, the Court must evaluate the evidence in the light most favorable to the Government. See United States v. Flores, 454 F.3d 149, 154 (3d Cir.2006) (citation omitted). "A verdict will be overruled only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." United States v. Coleman, 811 F.2d 804, 807 (3d Cir.1987) (citation omitted). "The evidence need not unequivocally point to the defendant's guilt as long as it permits the jury to find the defendant guilty beyond a reasonable doubt." United States v. Pungitore, 910 F.2d 1084, 1129 (3d Cir.1990). In applying this standard of review, the Court "must be ever vigilant in the context of Fed.R.Crim.P. 29 not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury." Flores, 454 F.3d at 154 (citation omitted). Thus, acquittal should "be confined to cases where the prosecution's failure is clear." United States v. Leon, 739 F.2d 885, 891 (3d Cir.1984). As the foregoing standard suggests, a Rule 29 movant bears a heavy burden to prove the evidence presented was insufficient to support the verdict. See United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation omitted).
The version of 18 U.S.C. § 2320(a) applicable to Diallo's conduct was captioned "Trafficking in counterfeit goods or services," and provided criminal penalties for one who
intentionally traffics or...
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