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Us v bengis and others

2011

The United States of America appeals from two orders of the United States District Courtfor the Southern District of New York whichdenied its applications for a restitution award in favor of the Republic of South Africa, pursuant to, first, the Mandatory Victims Restitution Act of 1996 (MVRA),and second, the Victim and Witness Protection Act of 1982(VWPA). The Appeals Court ruled that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, and (2) is a victim, as defined by the MVRA and VWPA, eligible to receive restitution. Accordingly, the Appeals Court said, "restitution is owed to South Africa."
The case involves the fact that from 1987 to 2001, Arnold Bengis, Jeffrey Noll and David Bengis (defendants) engaged in an elaborate scheme to illegally harvest large quantities of South Coast and West Coast rock lobsters in South African waters for export to the United States in violation of both South African and U.S. law. The district court heldthat South Africa had no property interest in either the lobsters that the defendants took from South African waters; that the governmentfailed to prove that the illegally harvested lobsters were the property of South Africa; and finally thateven if restitution was permissible as a matter of law, "the complication and prolonging of the sentencing process resulting from the fashioning of the order of restitution under this section would outweigh the need to provide restitution to the Republic of South Africa."
Judgment:
The Appeals Court reversed and remanded the district court orders and said, "?we hold that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, (2) is a victim for restitution purposes, as defined by the MVRA and VWPA, and (3) whatever the complexity in fashioning a restitution order in this case, it is insufficient to preclude entry of suchan order under the MVRA. Accordingly, the judgments of the district court are vacated and the case is remanded to the district court for further proceedings consistent with this opinion."

United States of America v Kaba

2012

Defendant Tamba Kaba was convicted of two counts of smuggling elephant ivory and one count of selling elephant ivory, 18 U.S.C. § 545; 16 U.S.C. § 3372(a)(1), and was sentenced to three concurrent terms of 33 months' imprisonment, three years of supervised release, forfeiture of USD 73,000, a USD 25,000 fine, and a USD 300 special assessment.
In this appeal case, Kaba argues that insufficient evidence established that he knew he was importing elephant ivory and that he knew that importing elephant ivory is illegal. Because these challenges bear only on his smuggling conviction, Kaba's conviction for selling elephant ivory stands.
Sufficient trial evidence supported Kaba's smuggling conviction. He was in Africa when the ivory was shipped from Africa to the United States. Kaba paid the shipping costs associated with both shipments, hired a freight-forwarder to pick up the shipments at the airport, and Kaba then transported those shipments to a storage facility in trucks he rented. The packing material in which one shipment of ivory was encased was found in the dumpster outside the facility. Later, Kaba sold a piece of ivory from one of the shipments to Dr. Jarra, who wrote on the check used to pay for the piece that the check was for the "ivory balance." That check was deposited into Kaba's account.
Kaba's primary argument is that the evidence is insufficient because there is no direct evidence that Kaba knew that the shipments contained ivory. But, "knowledge and intent can ... be proved through circumstantial evidence and the reasonable inferences drawn therefrom," United States v. MacPherson, 424 F.3d 183, 189 (2d Cir.2005) (collecting cases), and, here, reasonable inferences drawn from the evidence establish that Kaba knew the shipments contained ivory.
There was also sufficient evidence that Kaba knew that importing ivory was illegal. Kaba conceded during his testimony that he had "'heard from people'" that "'you cannot import ivory into the United States.'" Gov't Br. at 7 (quoting T:384). In addition, the packaging of the ivory pieces-hidden in hollowed-out compartments of statues—is strong evidence that Kaba (as importer) knew the ivory was being imported illegally.
Kaba challenges his sentence on the ground that his trial counsel provided ineffective assistance by failing to review the pre-sentence report ("PSR") with Kaba, who claims he does not read English and thus could not read the PSR. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate, first, "that counsel's performance was deficient," that is, the attorney made errors so serious that the representation "fell below an objective standard of reasonableness," and, second, that there was prejudice.
Kaba cannot show prejudice. He asserts that if he had received adequate counsel he would have objected to the two-level enhancement for commission of the offense for pecuniary gain because he did not profit from the single sale of ivory for which he was convicted. But the enhancement does not require Kaba to realize a profit in the transactions. It applies "[i]f the offense ... was committed for pecuniary gain or otherwise involved a commercial purpose." U.S.S.G. § 2Q2.1(b)(1). "'For pecuniary gain' means for the receipt of, or in anticipation of receipt of, anything of value, whether monetary or in goods or services." U.S.S.G. § 2Q2.1, cmt. n. 1. Actual profit and profitability are beside the point. The reference to "anticipat[ed]" receipt of "anything of value" confirms that the enhancement applies whenever the defendant anticipates a profit or anything of value. Accordingly, Kaba's sale of the ivory—even if he did not turn a profit—supports the two-level enhancement of his sentence.
Judgment:
In any event, since Kaba sold at least one ivory piece, the offense involved a commercial purpose, which would support the two-level enhancement. See U.S.S.G. § 2Q2.1 (b)(1).
We have considered all of the additional arguments and find them to be without merit.
Accordingly, the judgment of the district court is affirmed. (Provides by: UNODC SHERLOC)