United States v. Tugulale

U.S. Court of Appeals for the Fifth Circuit
United States v. Tugulale, 255 F. App'x 765 (5th Cir. 2007)

United States v. Tugulale

Opinion

PER CURIAM: *

A jury convicted defendant Tugulale of aiding and abetting bank fraud and attempting to commit bank fraud, in violation of 18 U.S.C. § 2,1344,1349, and found that he took property valued between $400,000 and $1 million. On appeal, Tugulale urges three points of error: that the district court erred in denying his motion to suppress based on alleged lack of consent to search his car, that insufficient *766 evidence supported the verdict, and that the Government violated his right to consular access under the Vienna Convention. 1

We review the district court’s conclusion that Tugulale validly consented to the search of his truck for clear error. See United States v. Vega, 221 F.3d 789, 795 (5th Cir. 2000). The district court did not clearly err in applying the six-factor test of United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988). The testimony of Postal Service Inspector Boyden strongly supports this conclusion. Tugulale’s argument on appeal is, as it was below, essentially that Boyden lied and Tugulale told the truth regarding the circumstances surrounding the consent. But it’s for the district court to make credibility determinations, see United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996), and here the district court expressly found Tugulale not credible. We will not disturb that founded judgment.

Tugulale summarily argues insufficiency of evidence as well. A rational jury could’ve disbelieved Tugulale’s story that he was framed and instead credited the copious evidence — testimony from multiple witnesses, physical evidence found on Tugulale, and recorded conversations — to find Tugulale guilty beyond a reasonable doubt. See United States v. Aubin, 87 F.3d 141, 144 (5th Cir. 1996). Tugulale briefly challenges the jury’s special finding as to the amount he tried to steal, noting only that the Government recovered all but $1,000. This argument goes to sentencing, not guilt, and Tugulale does not appeal his sentence; in any event, there was plenty of evidence that Tugulale attempted to steal between $400,000 and $1 million, and it’s irrelevant that the Government recovered most of that money, see U.S.S.G. § 2Bl.l(b).

AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1

. Tugulale correctly concedes that, he cannot pursue the last argument on direct appeal, see United States v. Jimenez-Nava, 243 F.3d 192, 195-200 (5th Cir. 2001); Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 2687, 165 L.Ed.2d 557 (2006), raising it only to note his intention to press the claim collaterally as a due process claim, see Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 737-38 (5th Cir. 2005), and preserve it should this court or the Supreme Court later require it to be raised on direct appeal.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Lordrick Magishawe TUGULALE, Defendant-Appellant
Status
Unpublished