In U.S. v. Ndiaye, No. 04-11283 (Jan. 6, 2006), the Court (Tjoflat, Kravich & Mills, b.d.) affirmed convictions and sentences arising out of a large scale conspiracy involving identification and Social Security fraud.
The Court rejected arguments that the district court abused its discretion in refusing the allow the defense to call a co-conspirator to the stand. The Court agreed with the district court’s conclusion that much of the proffered testimony was irrelevant or "collateral" to the proceedings.
The Court also rejected the argument that a "deliberate indifference" instruction should not have been given. The Court recognized that such an instruction is appropriate only when there is evidence in the record showing the defendant purposely contrived to avoid learning the truth, but found that the giving of the instruction was harmless error where it does not affect the burden of proof beyond a reasonable doubt.
The Court also rejected the argument that the instructions concerning "knowingly and willfully" did not adequately inform the jury of the defense to these charges.
The Court further rejected challenges to the sufficiency of the evidence, noting that the jury "obviously" found the government witnesses credible. The Court rejected the argument that the offense of inducing an alien to enter or reside in the United States, 8 U.S.C. § 1324(a)(1)(A)(iv), could not involve aliens who had already entered the country. The Court noted that helping an alien obtain a (fraudulent) Social Security card "encourages" an alien to enter the United States, and noted that helping an illegal alien obtain a Social Security card was sufficient to support a conviction.
Turning to sentencing issues, the Court affirmed the imposition of an obstruction of justice sentence enhancement, based on the defense obtaining two false affidavits from witnesses. The Court noted that it did not matter that the defense never introduced these affidavits at trial because the enhancement applies to obstruction "during the course of the investigation." The Court noted that the witnesses were "influenced" by the defendant to make false statements in the affidavits. Alternatively, the enhancements were supported by one defendant telling his wife not to testify.
