U.S. v. Yusufu

• Decision Date: 01 August 1995
• Docket Number: No. 94-3608,94-3608
• Citation: 63 F.3d 505
• Parties: 42 Fed. R. Evid. Serv. 1062 UNITED STATES of America, Plaintiff-Appellee, v. Isa YUSUFU, a/k/a Uni Kano, a/k/a David Barbarine, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 505

63 F.3d 505

42 Fed. R. Evid. Serv. 1062

UNITED STATES of America, Plaintiff-Appellee, v. Isa YUSUFU, a/k/a Uni Kano, a/k/a David Barbarine Defendant-Appellant.

No. 94-3608.

United States Court of Appeals Seventh Circuit.

Argued June 2, 1995.

Decided Aug. 1, 1995.

Matthew L. Jacobs, Asst. U.S. Atty. (argued), Office of U.S. Atty., Milwaukee, WI, for plaintiff-appellee U.S.

Laurence M. Moon (argued), Whitefish Bay, WI, for defendant-appellant Isa D. Yusufu aka David M. Barbarine aka Uni Kano.

Before CUMMINGS, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

While serving a prison sentence (for what crime we do not know) at the Federal Correctional Institution in El Reno, Oklahoma--(FCI-El Reno), Isa Yusufu concocted a scheme to manufacture income. While at FCI-El Reno, he received an account application from Strong Mutual Funds (Strong Funds), an investment management company located in Menomonee Falls, Wisconsin. When he was released from prison in early 1993, he, in conspiracy with Vincett Duckett, submitted the application under the name David Barbarine to Strong Funds along with five money orders purporting to be worth $1,000 each. The money orders had been altered from their actual values of $20.50 each. Later, he supplemented that deposit with a cashier's check purporting to be worth $85,000 that was actually worth only $5.00. After this second deposit, Strong Funds caught on and alerted the FBI; Yusufu's conspiracy was put to an end a few days later, but the search for the real David Barbarine continued for several more months.

Eventually, the FBI accurately identified Yusufu as Duckett's coconspirator. A jury convicted Yusufu of one count of conspiracy under 18 U.S.C. Sec. 371 and two counts of unlawfully transporting altered securities in interstate commerce under 18 U.S.C. Sec. 2314 (crimes that also served as the predicates for the conspiracy count). The district court sentenced Yusufu to 41 months' imprisonment, a $2,000 fine, and three years' supervised release following imprisonment. Yusufu appeals his conviction, claiming that the government provided insufficient evidence on which to convict him and that his previous incarcerations should not have been disclosed to the jury. He also appeals his sentence, arguing that the district court calculated improperly the amount of loss he caused and erred in finding that he had obstructed justice.

I. The Convictions

A. Sufficiency of the Evidence

Yusufu argues that the government failed to prove beyond a reasonable doubt that it was he who transported altered securities interstate and conspired with Vincett Duckett to do so. Therefore, we will review the evidence to determine only whether it provided a sufficient basis for a jury to determine beyond a reasonable doubt that the defendant participated in the scheme to the extent required by the conspiracy and substantive statutes.

As a general matter, we will reverse a jury's verdict for insufficiency of the evidence only if, when the evidence and its accompanying inferences are considered in the light most favorable to the government, no reasonable juror could have found the defendant guilty of the challenged elements of the crime beyond a reasonable doubt. United States v. Durrive, 902 F.2d 1221, 1225 (7th Cir.1990). However, the evidence linking a defendant to a conspiracy must be substantial to sustain the jury's verdict. Durrive, 902 F.2d at 1229. Each element of the conspiracy may be proved by circumstantial evidence. United States v. Jensen, 41 F.3d 946, 954 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1835, 131 L.Ed.2d 754 (1995). We do not reweigh the evidence or re-judge the credibility of the witnesses unless the testimony is so improbable on its face that no reasonable factfinder could accept it. United States v. Saunders, 973 F.2d 1354, 1358 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1026, 122 L.Ed.2d 171 (1993); United States v. Dortch, 5 F.3d 1056, 1065 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1077, 127 L.Ed.2d 394 (1994).

The participation elements of conspiracy, to which Yusufu directs his sufficiency challenge, require that the government prove that the conspiracy existed, that the defendant knew of the conspiracy, and that the defendant intended to join and further the conspiracy's aims. United States v. Roberts, 22 F.3d 744, 748 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 744, 130 L.Ed.2d 645 (1995).

The first clue the FBI had to Yusufu's participation was that Yusufu accompanied Duckett when the FBI delivered to Duckett, who posed as David Barbarine, withdrawals from the Barbarine account on May 13, 1993. At that time Yusufu gave the FBI and the Houston police the false name of Roman Akeh. The FBI searched Duckett's car and found a Federal Express package containing two Strong Funds share drafts, drawn on the account of David M. Barbarine, made out to Kenneth Williams. This package was addressed to Kenneth Williams at 11254 Huston Street, # 101, North Hollywood, California, 91601, the address of the real Roman Akeh, who happened to be Yusufu's cousin. Yusufu had been staying at this address in California intermittently during the Spring of 1993, though his cousin knew him only as Emmanuel Joseph and knew of no one named Kenneth Williams.

Also noteworthy about these packages is that the return address was to Crown Oil Field Services at a post office box that had been established by someone claiming to be "Uni Kano Ibrahim." This name was strikingly similar to the name, "Uni Kano," that Yusufu had given to Houston police when stopped in April 1993. It was also similar to the name, "Uni Y. Kano," attached to the telephone service for the portable phone Houston police found in Yusufu's car during that April stop. This same phone was later used to make nine calls to Strong Funds in May 1993. Additionally, INS files show that Crown Oil Field Service's Federal Express account was used to ship to the INS correspondence related to an immigration dispute between Yusufu and the INS.

After arresting Duckett, the FBI agents tried in vain to identify Yusufu. Eventually they contacted the Houston Police Department, who took the defendant into custody in order to identify him. Yusufu told a Houston police officer, as he had told the FBI agents, that his name was Roman Akeh. The police fingerprinted him, and those fingerprints matched those of a person previously identified by Houston police as Uni Y. Kano (the name Yusufu had given Houston police in April 1993). The defendant, however, denied knowing anyone by that name. Houston police arrested the defendant on charges of failing to identify himself, but then released him on bond.

Between May 1993 and August 1993, someone negotiated in the Los Angeles area at least three other Strong Funds share drafts drawn on the Barbarine account. Yusufu was arrested in the Los Angeles area on August 17, 1993 under the name Emmanuel Joseph.

These facts provided the jury with substantial evidence that Yusufu or Duckett was about to send the share drafts found in the car from one fictitious entity, Crown Oil Field Services, to another, Kenneth Williams. They also provide substantial evidence for the jury to have found that Yusufu intentionally promoted the scheme by providing his cousin's address knowing that he, Yusufu, would be able to receive the share drafts at that address, at which point he could negotiate them further. These findings would suffice to lead the jury to conclude that it was Yusufu who conspired with Duckett to transport altered securities interstate. Therefore, the evidence sufficiently supports his conviction on the conspiracy count.

The crime of interstate transportation of altered securities, counts two and three of the indictment, includes the following elements: 1) the defendant caused the securities to be transported in interstate commerce; 2) at the time the defendant caused the transportation of the securities, the securities were altered; 3) the defendant knew, at the time he caused the securities to be transported interstate, that the securities were altered; 4) the defendant acted with unlawful or fraudulent intent. See 18 U.S.C. Sec. 2314. Again, Yusufu contests only the first element: whether it was he who conspired with Duckett to commit the offense.

To convict the defendant of each of the two counts of this crime, the government had to provide evidence from which a reasonable jury could conclude beyond a reasonable doubt that either the defendant or his coconspirator, Duckett, fulfilled all of the elements with respect to each count. See Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946) (holding that a party to a conspiracy may be prosecuted for a substantive offense committed by a coconspirator in furtherance of the conspiracy even if that party did not participate in or have knowledge of the substantive offense).

Strong Funds sent the application used to open the Barbarine account to "Is Yusufu" at FCI-El Reno at a time when the defendant (whose apparent real name, as a reminder, is Isa Yusufu) was incarcerated at FCI El Reno. Handwriting experts at trial testified that whoever filed a motion in the U.S. Court of Appeals for the Fifth Circuit on behalf of Yusufu on November 3, 1993 also completed the Strong Funds application for the Barbarine Account, inscribed the printing on the altered money orders, filled out the labels on the Federal Express shipping label on the package addressed to Kenneth Williams, and wrote on the white envelope and two Barbarine share drafts found inside the Williams package. The government also introduced evidence that Yusufu's motion to the Fifth Circuit was sent from the Harris County, Texas jail, that he was an inmate at the jail from August 31, 1993 until November 3, 1993, and that the motion was covered with his fingerprints. Additionally, the Strong Funds...