United States v. Doumbia

• Decision Date: 12 August 2022
• Docket Number: CRIMINAL ACTION 19-392
• Parties: UNITED STATES OF AMERICA v. MALAN DOUMBIA, et. al.
• Court: U.S. District Court — Eastern District of Pennsylvania

UNITED STATES OF AMERICA
v.
MALAN DOUMBIA, et. al.

CRIMINAL ACTION No. 19-392

United States District Court, E.D. Pennsylvania

August 12, 2022

MEMORANDUM OPINION

WENDY BEETLESTONE, J.

After a week-long trial, a jury convicted defendants Malan Doumbia and Souleymane Diarra (“Defendants”) on all counts of a nine-count indictment which charged them with various fraud, aggravated identity theft, and money laundering offenses. Defendants now move under Federal Rule of Criminal Procedure 29 for a judgment of acquittal. For the reasons that follow, Defendants' motions will be denied.

I. BACKGROUND

As alleged in the indictment, Defendants, along with a fugitive co-conspirator, Souleyman Jallow, carried out a complex credit/debit card fraud scheme from 2012 to 2019. As part of the scheme, Defendants allegedly purchased thousands of stolen credit/debit numbers from darknet websites overseas, and then attempted to withdraw funds from those accounts. In March 2015, following an investigation, United States Secret Service (“USSS”) agents executed search warrants at Defendants' residences in Philadelphia. During that search, agents seized the following: card encoding machines; re-encoded cards; blank card stock; and, computers and phones which contained thousands of stolen debit/credit card numbers. Defendants were charged, and ultimately found guilty of: (1) conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349; (2) counterfeit access device fraud, in violation of 18 U.S.C. §§ 1029(a)(1) and 2; (3) possession of device-making equipment, in violation of 18 U.S.C. §§1029(a)(4) and 2; (4)

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aggravated identity theft, in violation of 18 U.S.C. §§ 1028(a)(1), (c)(5), and 2; and, (4) conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(h), (a)(2)(B)(i) and (a)(2)(A).

During trial, the Government presented the jury with a large swath of evidence. The evidence included, inter alia, transcripts of wiretapped conversations between confidential informants and defendants; photos of blank cards and card-making devices found in Defendants' homes; and, the testimony of multiple witnesses involved in the investigation. These witnesses included: (1) Confidential Informant 2 (“CI2”); (2) USSS Special Agent Malaika Crowe; (3) USSS forensic computer agent Bryan Deyoung; and, (4) Department of Homeland Security agent Michael Johnson. The parties also stipulated to a number of facts regarding what certain victims of Defendants' conduct would have testified to regarding their stolen information. Defendant Diarra moves for acquittal on all counts; Defendant Doumbia moves for acquittal only on the conspiracy to commit wire fraud count and the aggravated identity theft counts.

II. STANDARD OF REVIEW

Under Rule 29 of the Federal Rules of Criminal Procedure, a judgment of acquittal must be entered for “any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). Evidence is insufficient if no “rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc) (quoting United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)). This standard is “highly deferential” to the findings of the jury. Id. Review under Rule 29 requires consideration of the entire record-not just pieces of evidence in isolation-in the light most favorable to the prosecution. Id. Courts “must be ever vigilant not to usurp the role of the jury by weighing credibility and assigning weight to the evidence.” Id. (citation omitted) (cleaned up). And to avoid “act[ing] as a thirteenth juror,” a

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verdict may only be overturned if it “falls below the threshold of bare rationality,” id. at 431, or “where the prosecution's failure is clear.” United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984) (citation omitted). Proving that this standard requires a verdict be overturned is “a very heavy burden.” United States v. Anderson, 108 F.3d 478, 481 (3d Cir. 1997) (citation omitted).

III. DISCUSSION

A. Count I: Conspiracy to Commit Wire Fraud, 18 U.S.C. § 1349

Both Defendants move for acquittal as to the wire fraud conspiracy count under 18 U.S.C. § 1349 which provides as follows: “[a]ny person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” The statute does not require proof of an overt act. See United States v. Obaygbona, 556 Fed.Appx. 161 (3d Cir. 2014). Thus, to establish a violation of 18 U.S.C. § 1349, the Government must have proven the following elements beyond a reasonable doubt: (1) that two or more people agreed to commit wire fraud; (2) that Defendants were members of that agreement; and, (3) that Defendants shared a unity of purpose and the intent to achieve a common goal. United States v. Rankin, 870 F.2d 109, 113 (3d Cir. 1989).

A conspiracy can be proven by direct or circumstantial evidence. Brodie, 403 F.3d at 134. Its existence can be inferred from evidence of related facts and circumstances “from which it appears, as a reasonable and logical inference, that the activities of the participants could not have been carried on except as a result of a preconceived scheme or common understanding.” Id. (citation omitted). Inferences drawn, however, cannot be based on “speculation.” United States v. Thomas, 114 F.3d 403, 406 (3d Cir. 1997); United States v. Boria, 592 F.3d 476, 481 (3d Cir. 2010). In reviewing a motion under Rule 29, a court faced with conflicting inferences “must presume-even if it does not affirmatively appear in the record-that the trier of fact

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resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” McDaniel v. Brown, 558 U.S. 120, 133 (2010) (citation and quotation marks omitted).

Diarra and Doumbia first argue that the evidence presented by the Government at trial is insufficient to sustain a conviction because “the Government presented no evidence” to establish that Diarra and Doumbia even know one another, such as a “telephone conversation, [or] text” between the two. However, at trial, the Government established through testimony and other evidence that Defendants went by aliases: Diarra was also known as “Vieux,” “V,” and “Mike,” while Doumbia was known as “Frenchie.” The Government then showed that “V” and Doumbia communicated with one another through multiple means. For example, the Government presented photos of Doumbia's phone, which phone displayed multiple messages on WhatsApp from a sender named “V.” The messages include numerous credit card numbers from Cathay Bank Taiwan. Doumbia responded with additional numbers and also wrote, “celui-la est bon,” which in French means “this one's good.” Other exhibits showed that Doumbia and “V” exchanged links to conversations through an app called “Privnote” which sends notes that selfdestruct after being sent. And another exchange on August 13, 2018, showed that “V” sent Doumbia a text message of credit card information from China Merchants Bank.

This evidence, taken as a whole, establishes that Diarra and Doumbia knew one another and worked together to share credit card numbers with each other that were not their own. This alone establishes the elements of a conspiracy, i.e., that Defendants knowingly agreed and worked together to achieve the common goal of illegally exchanging credit card numbers.

But even if one were to overlook the above evidence, as Defendants do in their motions, the Government was not legally required to show evidence of direct communication between Diarra and Doumbia. The Government was permitted to present circumstantial evidence of the conspiracy, which it did. For example, CI2 testified at trial that prior to his arrest, he was

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involved in the credit card fraud business, and that he knew Diarra through that business. CI2 further testified that Diarra worked with a man named Malan Doumbia, who also went by “Frenchie.” CI2 stated that Diarra told him about working with Doumbia, and that “[Diarra] trust[ed] Frenchie,” enough to provide Doumbia with fake credit cards which he would use to withdraw cash from banks. The Government also presented transcripts of wiretapped conversations between CI2 and Diarra during which Diarra confirmed that “the French guy's [credit card] numbers really work” and that he knew specific details about how Doumbia conducted his work, including: that Doumbia had a manual device with which to make credit cards; that Doumbia eventually lost that device; and, that when Doumbia received the credit card numbers, “he d[id] not use [them] on the spot. He [waited] for about six month[s] before using them so [the FBI] don't trace them [sic] and know their origin.”

Defendants do not address the Government's evidence in their Reply. Instead, they argue that the Government improperly relied on evidence from CI2 to establish the existence of a conspiracy and that “the law does not permit [the finding of] a conspiracy with a Government informant.” But the Government's objective at trial was not to show the existence of a conspiracy between CI2 and the Defendants, but rather between Defendants themselves through CI2's testimony and recorded conversations. The Government did present evidence on this theory, and it was rational for the jury to agree with the Government that Defendants were guilty beyond a reasonable doubt of carrying out a conspiracy. Defendants' motions will therefore be denied as to the conspiracy to commit wire fraud count.

B. Count II: Counterfeit Access Device Fraud, 18 U.S.C. § 1029(a)(1) and 2

Diarra next moves for acquittal on the Counterfeit Access Device Fraud Count. 18 U.S.C. § 1029(a)(1). To prove a violation of Section 1029(a)(1), the Government must have proven:...