15-2766
     United States v. Saelim

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
     RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
     ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
     OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   2nd day of December, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            ROSEMARY S. POOLER,
 8                          Circuit Judges,
 9
10                GEOFFREY W. CRAWFORD,*
11                              Judge.
12
13
14   - - - - - - - - - - - - - - - - - - - -X
15
16   United States of America,
17            Appellee,
18
19                -v.-                                           15-2766
20
21   Usawan Saelim,
22            Defendant-Appellant,
23


          *    Judge Geoffrey W. Crawford, of the United States
     District Court for the District of Vermont, sitting by
     designation.
                                                1
 1   Rana Khandakar, also known as Rick
 2   Shinwat,
 3            Defendant.
 4
 5   - - - - - - - - - - - - - - - - - - - -X
 6
 7   FOR APPELLANT:               Elizabeth E. Macedonio, New York,
 8                                NY; Randall D. Unger, Bayside, NY.
 9
10   FOR APPELLEE:                Christine Magdo, Karl Metzner,
11                                Assistant United States Attorneys,
12                                for Preet Bharara, United States
13                                Attorney for the Southern District
14                                of New York.
15
16        Appeal from a judgment of the   United States District Court
17   for the Southern District of New     York (Koeltl, J.).
18        UPON DUE CONSIDERATION, IT IS   HEREBY ORDERED, ADJUDGED AND
19   DECREED that the judgment of the     district court be AFFIRMED.
20
21        Usawan Saelim was convicted, after a three-week jury trial,
22   of conspiracy to commit access device fraud in violation of 18
23   U.S.C. § 1029(b)(2); conspiracy to commit mail and bank fraud
24   in violation of 18 U.S.C. § 1349; bank fraud in violation of
25   18 U.S.C. § 1344 and 2; aggravated identity theft in violation
26   of 18 U.S.C. § 1028A and 2; and conspiracy to steal government
27   funds in violation of 18 U.S.C. § 371. The district court
28   (Koeltl, J.) sentenced her to an aggregate term of 36 months
29   of incarceration to be followed by three years of supervised
30   release. The district court also imposed a mandatory special
31   assessment and entered restitution and forfeiture orders.
32        Saelim argues that the evidence was insufficient to
33   establish that she participated in a conspiracy or that she
34   knowingly committed the charged crimes. Her co-defendant and
35   boyfriend (later, her husband), Rana Khandakar, largely
36   confessed to the crimes and testified at trial that Saelim was
37   not a knowing participant.
38        “We review challenges to the sufficiency of evidence de
39   novo.” United States v. Pierce, 785 F.3d 832, 837 (2d Cir.
40   2015). A defendant challenging the sufficiency of the evidence
41   bears a heavy burden because “we view the evidence in the light
42   most favorable to the government, drawing all inferences in the

                                    2
 1   government’s favor and deferring to the jury’s assessments of
 2   the witnesses’ credibility.” Id. at 838. “We will sustain the
 3   jury’s verdict if any rational trier of fact could have found
 4   the essential elements of the crime beyond a reasonable doubt.”
 5   Id. (internal quotation marks omitted). We acknowledge that
 6   “[t]he jury may reach its verdict based upon inferences drawn
 7   from circumstantial evidence,” and on review, “the evidence must
 8   be viewed in conjunction, not in isolation.” United States v.
 9   Persico, 645 F.3d 85, 104 (2d Cir. 2011). In cases of
10   conspiracy, deference to the jury’s determinations of
11   credibility, weight of the evidence and inferences “is
12   especially important . . . because a conspiracy by its nature
13   is a secretive operation, and it is a rare case where all aspects
14   of a conspiracy can be laid bare in court with the precision
15   of a surgeon’s scalpel.” United States v. Pitre, 960 F.2d 1112,
16   1121 (2d Cir. 1992) (internal quotation marks and citation
17   omitted).
18        Saelim argued at trial, as she argues now, that the
19   government failed to prove her participation in Khandakar’s
20   crimes. The jury rejected that argument, and to the extent that
21   Saelim relies on Khandakar’s testimony, we must defer to the
22   jury’s adverse assessment of his credibility.
23        The government offered abundant evidence that Saelim
24   knowingly participated in the fraudulent schemes. The relevant
25   criminal conduct was done primarily in the home that Saelim and
26   Khandakar shared, and that Saelim’s personal cell phone and
27   laptop were used in that conduct. Evidence found on her devices
28   reflected the use of stolen credit cards, the online sale of
29   stolen goods, text messages to and from potential purchasers
30   of those goods, and extended communications negotiating their
31   prices. One telling example was Saelim’s communications with
32   her friend “Phillip,” in which she provided specific advice on
33   how to sell items purchased with stolen credit card information
34   and on how to avoid detection and account suspension on eBay.
35   Given the breadth of communications provided, a reasonable jury
36   could conclude that Saelim knowingly engaged in those unlawful
37   activities herself, notwithstanding Khandakar’s testimony that
38   he was responsible for them, and merely borrowed Saelim’s
39   devices.
40        The government provided additional evidence probative of
41   Saelim’s knowing participation in the criminal conspiracy and
42   substantive crimes, whether or not the crimes were orchestrated

                                    3
 1   by Khandakar. Saelim possessed a large quantity of cash and
 2   stolen credit cards and she repeatedly deposited large amounts
 3   of the proceeds of criminal conduct into a bank account that
 4   only she could access. Taken in combination, and viewed in the
 5   light most favorable to the government, the evidence at trial
 6   was sufficient for a reasonable jury to find her guilty of the
 7   charged crimes.
 8        Accordingly, and finding no merit in appellant’s other
 9   arguments, we hereby AFFIRM the judgment of the district court.

10                                FOR THE COURT:
11                                CATHERINE O’HAGAN WOLFE, CLERK




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