12

‐ 4617

United States v. Fofanah

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

____________________ 3

4

August Term, 2013 5

6

(Argued: October 25, 2013 Decided: September 2, 2014) 7

8

Docket No. 12

‐ 4617 9

10

____________________ 11

12

UNITED STATES OF AMERICA, 13

14

15

Appellee, 16

17

v. 18

19

ABDULAI FOFANAH, AKA FODAY, 20

AKA FODAY FOFANAH, 21

AKA FODAY OSMAN FOFANAH, 22

23

Defendant

‐ Appellant

. 24

25

____________________ 26

27

Before: KATZMANN, Chief Judge

, LEVAL and POOLER, Circuit Judges

. 28

Judge LEVAL concurs in a separate opinion. 29

30Appeal from a November 13, 2012 judgment entered in the United States 1

District Court for the Southern District of New York (John F. Keenan, J .), 2

convicting defendant Abdulai Fofanah after a jury trial of conspiracy to transport 3

stolen vehicles, transportation of stolen vehicles, and possession of stolen 4

vehicles. Fofanah challenges on appeal the district court’s issuance of a conscious 5

avoidance jury instruction and two sentencing enhancements that the district 6

court imposed, one for the use of sophisticated means and another for being in 7

the business of receiving and selling stolen property. We conclude that even if the 8

issuance of the conscious avoidance jury instruction was error, any such error 9

was harmless. We further hold that Fofanah’s challenges to his sentence must 10

fail. 11

Affirmed. 12

Judge Leval joins in this per curiam opinion and concurs in a separate 13

opinion. 14

____________________ 15

DAVID A. LEWIS, Assistant Federal Public Defender, 16

Federal Defenders of New York, Inc., New York, NY, 17

for Defendant

‐ Appellant

. 18

19

20

2IAN P. MCGINLEY, Assistant United States Attorney, 1

(Preet Bharara, United States Attorney for the Southern 2

District of New York; Brent S. Wible, Assistant United 3

States Attorney, on the brief), New York, NY, for 4

Appellee

. 5

6

Per Curiam : 7

Defendant Abdulai Fofanah appeals from a November 13, 2012 judgment 8

entered in the United States District Court for the Southern District of New York 9

(John F. Keenan, J .). Fofanah was convicted after a jury trial of conspiracy to 10

transport stolen vehicles, in violation of 18 U.S.C. § 371; transportation of stolen 11

vehicles, in violation of 18 U.S.C. § 2312; and possession of stolen vehicles, in 12

violation of 18 U.S.C. § 2313. The district court sentenced defendant principally to 13

72 months of imprisonment and three years of supervised release. 14

On appeal, Fofanah challenges his conviction on the basis that it was 15

impermissible for the district court to instruct the jury that it could convict him 16

on the theory of conscious avoidance. Defendant also takes issue with the district 17

court’s imposition of sentencing enhancements for: (1) the use of “sophisticated 18

means” under Section 2B1.1(b)(10)(C) of the Sentencing Guidelines of the United 19

States Courts; and (2) being “in the business of receiving and selling stolen 20

property” under Section 2B1.1(b)(4) of the Guidelines. 21

3Because we conclude that any error in giving the contested jury instruction 1

was harmless, and Fofanah’s challenges to his sentence are without merit, we 2

AFFIRM the judgment and sentence of the district court. 3

BACKGROUND 4

I. Facts 5

Fofanah’s offense conduct consisted of his leadership role in a scheme to 6

ship high

‐ priced stolen cars from New York through a port in New Jersey to be 7

sold in Guinea, Africa. Around May 2011, Fofanah called a trucker named 8

Fousseni Traore Sahm about shipping some containers of cars to Guinea. Sahm 9

met with Fofanah, and another man named Habib Diallo, about shipping the 10

cars. Sahm testified that at that meeting with Habib, Fofanah told Sahm that 11

“they was going to do some containers and it’s not going to be one or two, and 12

then the car they was going to load, you know, are no good.” Trial Tr. at 319. 13

Sahm understood Fofanah to mean that the cars were stolen. At that meeting, 14

Habib showed Sahm the titles that they were going to use to ship the cars, and 15

the titles did not match the cars actually being shipped. 16

To carry out the shipments, Fofanah would provide Sahm with a booking 17

number that Sahm would use to go to the port to retrieve an empty shipping 18

4container. Sahm would bring the container to the Bronx, New York, and it would 1

be loaded with cars in Fofanah’s presence. Sahm testified that while the 2

containers were being loaded Fofanah appeared “nervous” and was “always 3

rushing us to finish the job and get out of there.” Id. at 325. 4

Once the containers were loaded, Fofanah would pay Sahm, and Sahm or 5

his drivers would take the containers back to the port to be shipped. Fofanah also 6

provided Sahm with dock receipts, which are used to prove that the containers 7

were delivered to the port. Sahm would obtain a stamp on the dock receipts and 8

return the stamped receipts to Fofanah. During this time period that Fofanah had 9

hired Sahm to transport the containers, Sahm was working with the police and he 10

would contact the police when Fofanah wanted to load a container. 11

On June 14, 2011, Fofanah and Sahm met with a third man, who was an 12

undercover officer. At that meeting, the undercover officer told Fofanah that the 13

officer’s brother (or the officer and his brother) wanted to start a car yard in 14

Senegal, and the officer was seeking information from Fofanah about how to get 15

titles for old cars. Fofanah told the undercover officer that it would be better to 16

ship the cars to Guinea because in Senegal “you have to present the real title.” 17

Gov’t’s Add. at 4. Fofanah also advised the undercover officer about taking a 18

5security system, such as LoJack, out of cars before shipping them to Africa. At 1

that meeting, Fofanah offered to sell a car to the undercover officer. 2

At the time of his arrest on June 20, 2011, Fofanah had in his possession a 3

shipping document that tied him to a container that he helped load with cars. He 4

admitted upon arrest that Habib had told him that the cars were “bad,” Trial Tr. 5

at 146, and that Fofanah had participated in loading the containers. The cars that 6

Fofanah was involved in loading into the containers were stolen. 7

II. The District Court’s Jury Instructions 8

At trial, the district court instructed the jury on what it means for a 9

defendant to have actual knowledge of a fact. It also instructed the jury that the 10

law “allows you to find that the defendant had knowledge of a fact when the 11

evidence shows that he was aware of a high probability of that fact, but 12

intentionally avoided confirming that fact. The law calls this ‘conscious 13

avoidance’ or ‘willful blindness.’” Id. at 647. The parties do not dispute that the 14

district court gave the conscious avoidance instruction over Fofanah’s objection. 15

III. Fofanah’s Conviction and Sentence 16

The jury found Fofanah guilty on all counts, and the district court 17

sentenced him principally to 72 months of imprisonment and three years of 18

6supervised release. The district court’s sentence included two enhancements 1

under the Guidelines, one for Fofanah’s use of sophisticated means in the 2

execution or concealment of the offense conduct, and the other for Fofanah being 3

in the business of receiving and selling stolen property. Fofanah objected to each 4

of those enhancements. 5

With regard to the sophisticated means enhancement, the court concluded 6

that “[t]his was a very sophisticated scheme” that involved “17 stolen high

‐ 7

priced cars that were going to be resold in Africa.” Sentencing Tr. at 13. The court 8

noted that the scheme was organized, and included “substituting the stolen cars 9

for the cars on the shipping documents.” Id. 10

The district court imposed the enhancement for Fofanah being in the 11

business of receiving and selling stolen property based on the “regularity and 12

sophistication of Mr. Fofanah’s activities” and the amount of property 13

involved—17 high

‐ priced cars. Id. at 7. 14

7DISCUSSION 1

I. The Conscious Avoidance Jury Instruction 2

A. Legal Standards 3

“‘A conscious avoidance instruction permits a jury to find that a defendant 4

had culpable knowledge of a fact when the evidence shows that the defendant 5

intentionally avoided confirming the fact.’” United States v. Kozeny

, 667 F.3d 122, 6

132 (2d Cir. 2011) (quoting United States v. Ferrarini

, 219 F.3d 145, 154 (2d Cir. 7

2000)), cert. denied sub nom. Bourke v. United States

, 133 S. Ct. 1794 (2013). The test 8

for when a conscious avoidance charge is permissible has two prongs. First, the 9

defendant must “assert[] the lack of some specific aspect of knowledge required 10

for conviction.” Id. (internal quotation marks omitted). Second, there must be an 11

“appropriate factual predicate for the charge

. . . , i.e., the evidence is such that a 12

rational juror may reach the conclusion beyond a reasonable doubt that the 13

defendant was aware of a high probability of the fact in dispute and consciously 14

avoided confirming that fact.” Id. (internal quotation marks omitted); accord 15

United States v. Cuti

, 720 F.3d 453, 463 (2d Cir. 2013), petition for cert. filed

, No. 13

‐ 16

1493 (U.S. Apr. 14, 2014); United States v. Svoboda

, 347 F.3d 471, 480 (2d Cir. 2003). 17

18

8“We review a claim of error in jury instructions de novo

, reversing only 1

where, viewing the charge as a whole, there was a prejudicial error.” United States 2

v. Aina

‐ Marshall

, 336 F.3d 167, 170 (2d Cir. 2003). 3

B. The Conscious Avoidance Jury Instruction Here Was Harmless 4

Fofanah does not challenge the content of the district court’s conscious 5

avoidance jury instruction, but rather argues that the necessary factual predicate 6

for giving the instruction was lacking. We need not decide whether the district 7

court erred in issuing the conscious avoidance instruction in this case because, if 8

the instruction was in error, any such error was harmless. 9

“[A]n erroneously given conscious avoidance instruction constitutes 10

harmless error if the jury was charged on actual knowledge and there was 11

overwhelming evidence to support a finding that the defendant instead 12

possessed actual knowledge of the fact at issue.” Ferrarini

, 219 F.3d at 154 13

(internal quotation marks omitted). In this case, the district court gave the jury an 14

instruction on actual knowledge, so the first requirement of the harmless error 15

analysis was satisfied. 16

Second, there was overwhelming evidence that Fofanah had actual 17

knowledge that the cars at issue were stolen. Fofanah told Sahm that the cars 18

9were “no good,” Trial Tr. at 319, which Sahm understood to mean stolen. 1

Fofanah was present at a meeting where there was discussion of the fact that the 2

titles for the cars being shipped did not match the actual cars, and he held title to 3

one of the vehicles that appeared on a dock receipt that did not match the vehicle 4

in the corresponding container. 5

At the time of his arrest, Fofanah was in possession of a shipping 6

document that tied him to a container that he had assisted in loading with the 7

cars. He admitted to participating in loading the shipping containers, and the 8

cars that were loaded into the containers had all been stolen. 9

In addition, defendant engaged in a discussion with an undercover officer 10

about how to ship cars abroad to Guinea as opposed to Senegal because it was 11

less likely that real titles would have to be presented in Guinea. Fofanah also 12

discussed with the undercover officer the practice of taking out the security 13

system on a car before it is shipped to Africa, which is done to prevent law 14

enforcement from locating the vehicle. 15

Accordingly, we hold that if the district court erred by instructing the jury 16

on conscious avoidance in this case, any such error was harmless because the jury 17

18

10was instructed on actual knowledge and there was overwhelming evidence that 1

Fofanah possessed actual knowledge that the cars at issue were stolen. 2

II. The Sentencing Enhancements 3

A. The Sophisticated Means Enhancement 4

Over Fofanah’s objection, the district court applied a sentencing 5

enhancement pursuant to Section 2B1.1(b)(10)(C) of the Guidelines for the 6

sophisticated means that defendant used with respect to the offense conduct. 7

Fofanah argues that the district court misapplied that Guideline because his 8

offense conduct was not sufficiently complex to merit the enhancement. We 9

disagree. 10

1. Legal Standards 11

Section 2B1.1(b)(10)(C) of the Guidelines provides that: “If

. . . the offense 12

. . . involved sophisticated means, increase by 2 levels. If the resulting offense 13

level is less than level 12, increase to level 12.” The term “sophisticated means” is 14

defined in the commentary to the Guidelines as “especially complex or especially 15

intricate offense conduct pertaining to the execution or concealment of an 16

offense.” USSG § 2B1.1(b)(10), comment. (n.8(B)). 17

18

11The parties disagree about the standard of review that we should employ 1

with respect to the district court’s application of the enhancement for 2

sophisticated means under Section 2B1.1(b)(10)(C). Relying on a case involving 3

the application of an enhancement under Section 2T1.1 of the Guidelines, which 4

concerns the use of sophisticated means in tax

‐ evasion offenses, Fofanah argues 5

that the standard of review is de novo, with due deference to the sentencing 6

court’s application of the Guideline. See United States v. Lewis

, 93 F.3d 1075, 1080 7

(2d Cir. 1996); see also United States v. Ojemen

, 465 F. App’x 69, 71 (2d Cir. 2012) 8

(summary order) (applying the standard of review in Lewis to the use of 9

sophisticated means under Section 2B1.1)

. The government contends that we 10

should review the application of this enhancement for clear error because the 11

district court’s determination of the issue was primarily factual. See United States 12

v. Gotti

, 459 F.3d 296, 349 (2d Cir. 2006); United States v. Vasquez

, 389 F.3d 65, 13

74–75 (2d Cir. 2004). 14

We need not wade into the nuances of the different standards of review 15

because even on de novo review the sophisticated means enhancement was 16

warranted in this case. 1 17

1 In other cases where the government has argued that the clear error

standard governs a sophisticated means enhancement, we have taken a similar

122. The Sophisticated Means Sentencing Enhancement Was Proper 1

We have recognized that the creation and use of false documents, and 2

other tactics to conceal offense conduct, are indicia of the sophistication of an 3

offense. Cf. United States v. Amico

, 416 F.3d 163, 169 (2d Cir. 2005) (applying the 4

former Section 2F1.1 enhancement for sophisticated means). 2 Here, Fofanah was 5

involved in the use of fraudulent titles to ship the cars at issue from the United 6

States to Guinea, and he was listed as the owner of one of the cars on a fraudulent 7

dock receipt. He also recommended the practice of disabling a car security 8

system, such as LoJack, before shipping cars to Africa, which is done to prevent 9

law enforcement from recovering the vehicle. He showed that he had developed 10

a sophisticated knowledge of the respective means of shipping stolen cars to 11

different African countries, explaining to the undercover officer that it was 12

preferable to ship to Guinea rather than Senegal because in Senegal one needs to 13

present real titles. 14

15

approach to the one we take here. See Ojemen

, 465 F. App’x at 71 n.2; United States

v. Elia

, 392 F. App’x 883, 886 n.3 (2d Cir. 2010) (summary order); United States v.

Regensberg

, 381 F. App’x 60, 61 n.1 (2d Cir. 2010) (summary order).

2 Section 2F1.1 of the Guidelines was deleted by consolidation with Section

2B1.1, effective November 1, 2001. See USSG § 2F1.1.

13The repetitive and coordinated nature of Fofanah’s conduct further reveal 1

the sophistication of the means he employed. See United States v. Finck

, 407 F.3d 2

908, 915 (8th Cir. 2005). Fofanah’s offense conduct was repetitive, as it involved 3

17 stolen cars that were to be resold in Africa. Moreover, the scheme in which 4

Fofanah participated involved coordination between Fofanah and Sahm to load 5

vehicles into containers that were driven to a port where customs would have to 6

be cleared. The fact that the scheme involved moving the cars across jurisdictions 7

and then abroad is also some evidence of the scheme’s sophistication. 8

Accordingly, the district court was correct to impose the sentencing 9

enhancement based on the sophisticated means of Fofanah’s conduct in this case. 10

B. The Enhancement for Being “in the Business of Receiving and 11

Selling Stolen Property ” 12

Again over Fofanah’s objection, the district court imposed a sentencing 13

enhancement for defendant being in the business of receiving and selling stolen 14

property under Section 2B1.1(b)(4) of the Guidelines. On appeal, defendant 15

argues that the enhancement was not warranted because the evidence failed to 16

show the requisite sophistication and regularity of his actions to substantiate the 17

conclusion that he was “in the business,” and there was no evidence that he was 18

personally involved in the sale of stolen cars. We again disagree. 19

141. Legal Standards 1

Section 2B1.1(b)(4) of the Guidelines provides that: “If the offense involved 2

receiving stolen property, and the defendant was a person in the business of 3

receiving and selling stolen property, increase by 2 levels.” The commentary to 4

that section of the Guidelines provides a non

‐ exhaustive list of factors for the 5

sentencing court to consider: “(A) The regularity and sophistication of the 6

defendant’s activities. [¶] (B) The value and size of the inventory of stolen 7

property maintained by the defendant. [¶] (C) The extent to which the 8

defendant’s activities encouraged or facilitated other crimes. [¶] (D) The 9

defendant’s past activities involving stolen property.” USSG § 2B1.1(b)(4), 10

comment. (n.5). 11

With respect to the standard of review governing this enhancement, the 12

parties again disagree. Fofanah argues that our review should be de novo. See 13

United States v. Carson

, 125 F.3d 845, 1997 WL 609134, at *1 (2d Cir. 1997) 14

(unpublished) (in the context of an enhancement under Section 2B6.1(b)(2) for 15

being in the business of receiving and selling stolen property in crimes related to 16

the alteration or removal of vehicle identification numbers, we review “factual 17

findings for clear error, and [the] determination that those findings support the 18

15challenged enhancement de novo ”). The government argues for a clear error 1

standard of review, as discussed earlier. 2

Again, we need not resolve this question because even under the de novo 3

standard the district court correctly imposed the Section 2B1.1(b)(4) enhancement 4

in this case. 5

2. The Enhancement for Being “in the Business” Was Warranted 6

With regard to whether Fofanah was in the business of receiving and 7

selling stolen cars, the sophistication of Fofanah’s offenses, which is discussed 8

earlier, weighs in favor of the enhancement under Section 2B1.1(b)(4). See USSG 9

§ 2B1.1(b)(4), comment. (n.5(A)) (recognizing sophistication as a relevant factor). 10

The regularity of Fofanah’s activities with respect to receiving and selling 11

stolen vehicles also supports the enhancement at issue here. See id. (recognizing 12

regularity as a relevant factor). Fofanah’s knowledge about the practices of 13

Senegal versus Guinea with regard to how rigorous each country is in 14

demanding “real” titles for cars that are shipped to those countries suggests that 15

he is a repeat player. Gov’t’s Add. at 5. In addition, Fofanah was involved in the 16

process of shipping 17 stolen cars in various containers over the course of about 17

18

16six weeks, which supports the district court’s conclusion that this was not a “one

‐ 1

shot deal.” Sentencing Tr. at 7. 2

The value of the stolen cars is another factor that weighs in favor of the 3

enhancement. See USSG § 2B1.1(b)(4), comment. (n.5(B)) (recognizing the value of 4

the stolen property as a relevant factor). Many of the stolen cars in this case were 5

luxury vehicles, such as Range Rovers, Porsches, and BMWs, and the total value 6

of the cars was over $500,000. 7

Fofanah also showed an interest in helping others engage in the type of 8

car

‐ shipping operation that he was involved in, which supports the 9

enhancement. See id. § 2B1.1(b)(4), comment. (n.5(C)) (recognizing as a relevant 10

factor the extent to which the defendant’s activities encouraged other crimes). As 11

noted earlier, Fofanah advised the undercover officer about shipping cars with 12

bad titles to Guinea as opposed to Senegal, which showed that he had acquired a 13

refined knowledge of the techniques for avoiding detection. 14

To the extent that Fofanah argues that there was insufficient evidence that 15

he actually sold stolen vehicles, his contention is without merit. During the 16

conversation that Fofanah had with Sahm and the undercover officer about 17

removing a car security system and shipping cars to Guinea as opposed to 18

17Senegal, Fofanah concedes that he stated he could sell the officer a Dodge 1

Charger. At that meeting, Fofanah also discussed obtaining various cars for the 2

officer to sell, and revealed his knowledge of how much could be made from 3

those sales. Thus, even if we were to hold that an enhancement under Section 4

2B1.1(b)(4) would only be permissible where a defendant personally receives and 5

sells stolen property—an issue we need not reach today—the enhancement 6

would apply to Fofanah in this case. 7

Accordingly, the district court was correct to impose the sentencing 8

enhancement for Fofanah being in the business of receiving and selling stolen 9

property. 10

CONCLUSION 11

For the foregoing reasons, we AFFIRM the judgment and sentence of the 12

district court. 13

14

18Leval, Circuit Judge , concurring: 1

Fofanah contends his conviction should be ove rturned because the court instructed the 2

jury on conscious avoidance of guilty knowledge (or willful blindness to the incriminating fact 3

that the cars were stolen) when the evidence, according to his argument, did not allow for such a 4

charge. He bases his argument on our opinion in United States v. Ferrarini , in which we 5

discussed the standards for such an instruction and concluded it should not have been given. See 6

United States v. Ferrarini , 219 F.3d 145, 157-58 (2d Cir. 2000). In our per curiam opinion, we 7

do not confront his argument because it would ma ke no difference to our disposition. Even if we 8

were to conclude the charge was given in error, the error would be harmless. I agree with and 9

join in the court’s opinion. I write separately to refute his argument because it is based on 10

misinterpretation of our precedent. 11

Fofanah reads Ferrarini as endorsing a standard that differs from the standard we have 12

espoused in cases in which we upheld convictions concluding that the charge was properly 13

given. His reading of Ferrarini is mistaken. Ferrarini did not endorse a standard at odds with 14

our precedents. To the contrary, Ferrarini concluded the charge should not have been given 15

because the court found that our standard for a conscious avoidance charge was not met, and the 16

court rejected the government’s argument seeking to justify the charge on the basis of evidence 17

of actual knowledge. Ferrarini does not support the defendant’s argument. 18

In United States v. Svoboda , decided subsequent to Ferrarini , we summarized the 19

evidentiary requirements for a conscious avoidance charge. The defendants were charged with 20

fraud in connection with the sale of securities. The defendant Robles appealed his conviction, 21

contending the jury should not have been charged on conscious avoidance. 347 F.3d 471, 480 22

(2d Cir. 2003). Citing prior authority, including the Ferrarini opinion, on which Fofanah 23

1erroneously relies, we reviewed what the evidence must show to justify giving the charge. We 1

explained: 2

A conscious avoidance instruction “may only be given if (1) 3

the defendant asserts the lack of some specific aspect of knowledge 4

required for conviction, . . . and (2) the appropriate factual predicate 5

for the charge exists, i.e., ‘the ev idence is such that a rational juror 6

may reach [the] conclusion beyond a reasonable doubt . . . that [the 7

defendant] was aware of a high probability [of the fact in dispute] 8

and consciously avoided confirming the fact[.]’” Ferrarini , 219 9

F.3d at 154 . . . . The second prong of this test thus has two 10

components – there must be evid ence that the defendant (1) was 11

aware of a high probability of the di sputed fact and (2) deliberately 12

avoided confirming that fact. . . . Moreover, the second prong may 13

be established where, “[a] defendant’s involvement in the criminal 14

offense may have been so overwhelmingly suspicious that the 15

defendant’s failure to question the suspicious circumstances 16

establishes the defendant’s purposeful contrivance to avoid guilty 17

knowledge.” 18

Id . We stressed as well that the conscious avoidance of guilty knowledge “may not be 19

established by demonstrating that the defendant was merely negligent, foolish or mistaken.” Id. 20

at 481-82 (internal quotation marks omitted). Revi ewing the evidence offered against Robles, we 21

found that it conformed to the standard. We theref ore upheld the propriety of the instruction and 22

affirmed his conviction. Id. at 480-81, 485. (There was no evidence that Robles had taken 23

affirmative steps to avoid acquiring knowledge of the incriminating facts.) 24

Although not always spelling out the standard in explicit terms, we have long 25

consistently adhered to this standard. See, e.g.

, United States v. Aina-Marshall , 336 F.3d 167 (2d 26

Cir. 2003); United States v. Rodriguez , 983 F.2d 455 (2d Cir. 1993); United States v. Bahadar

, 27

954 F.2d 821 (2d Cir. 1992); United States v. Guzman , 754 F.2d 482 (2d Cir. 1986), cert. denied

, 28

474 U.S. 1054 (1986). 29

2Fofanah now argues that Ferrarini calls for use of a very different standard. He contends 1

that the instruction may not be given in the absence of evidence that the defendant took 2

affirmative steps to avoid knowing the incriminating facts. He appears to argue as well that 3

evidence of actual knowledge is not compatible with an instruction on conscious avoidance. His 4

arguments, however, are based on a misreading of Ferrarini

. 5

In Ferrarini , our court accepted the argument of defendants Vieira and Kagan that the 6

government had not established a factual predicate for the conscious avoidance charge (although 7

going on nonetheless to affirm their convictions because of the strong evidence of actual 8

knowledge). The reason we found the evidence inadequate to sustain the giving of the charge 9

was that, under our standard, which the Ferrarini opinion recited in a manner virtually identical 10

to our later statement of it in Svoboda

, see Ferrarini, 219 F.3d at 154, a showing of a defendant’s 11

actual knowledge does not justify giving the instruction. There must be evidence capable of 12

supporting a finding “that the defendant was awar e of a high probability of the [incriminating] 13

fact in dispute and consciously avoided confirming that fact.” Id. (brackets omitted). While we 14

found evidence of actual knowledge on the part of Vieira and Kagan, we found no evidence that 15

could support a finding that either defendant was aware of a high probability of the incriminating 16

fact but consciously avoided learning it. We expl ained, “[T]he only [arguable] factual predicate 17

for conscious avoidance to which the government can point is the evidence that Kagan had 18

actual knowledge of the frauds. . . . [T]he government does not argue, and the evidence does not 19

show, that Kagan deliberately avoided learning the truth.” Id. at 158. As to Vieira, we similarly 20

explained, “The evidence shows that Vieira actually knew of the frauds; it is not sufficient to 21

permit a finding that he consciously avoided confirming them. The fact that a jury can – on the 22

3evidence – find actual knowledge does not mean that it can also find conscious avoidance.” Id. at 1

157. 2

This discussion in Ferrarini , properly understood, does not support Fofanah’s arguments. 3

It means neither that there must be evidence of affirmative steps taken by the defendant to avoid 4

learning the truth, nor that evidence of the defendant’s actual knowledge precludes a charge on 5

conscious avoidance. It means only, as we have repeatedly stated in reciting the standard, that 6

there must be evidence from which a jury could find that the defendant was aware of a high 7

probability of the critical incriminating facts a nd consciously decided to act without confirming 8

them. 9

What we said in Ferrarini does not support Fofanah’s argument that the conscious 10

avoidance charge may not be given without a showing of affirmative steps taken by the 11

defendant to ensure that he does not learn the truth. Our statements that the evidence must 12

support a finding that the defendant “consciously” or “deliberately” avoided referred to a 13

requisite state of mind, not to a need for affirmative acts. Conviction on a conscious avoidance 14

theory cannot be justified either by the defendant’s failure to try hard enough to learn the 15

incriminating facts or by the fact that the defendant’s circumstances “ should have apprised [the 16

defendant] of the unlawful nature of [his] conduct.” Id. at 157 (quoting United States v. 17

Rodriguez , 983 F.2d 455, 458 (2d Cir. 1993)). The defendant must be consciously aware that, in 18

spite of the apparent high probability that the acts in which he joins are illegal, he does not know 19

the crucial facts. A finding that a defendant’s ignorance of incriminating facts was a conscious 20

choice on the defendant’s part in no way require s a finding that the defendant took affirmative 21

steps to avoid gaining the knowledge. It does not depend, for example, on the defendant having 22

4said, “I don’t want you to tell me how you obtained these stacks of neatly bound $100 bills, 1

packed in bags labeled ‘Brink’s.’” 2

Apart from the fact that our precedents have not required a showing of affirmative acts 3

designed to avoid acquiring guilty knowledge, such a requirement would make the doctrine ill4

suited to its purpose and inconsistent with the habits of well-advised, self-protective criminal 5

conduct. In many types of criminal enterprise, the asking of unnecessary questions and needless 6

volunteering of information are frowned upon b ecause such conduct needlessly subjects all 7

participants to risk of incrimination. When a drug dealer pays a mule $5,000 to deliver an 8

innocuous looking package to a person wearing a Dodgers baseball cap standing next to a blue 9

Audi in a parking lot a few blocks away, he has no need to explain that the package contains 10

cocaine, and the mule generally knows it is better not to ask. One who seeks to sell a hijacked 11

truckload of computers to a fence at a small fraction of the value it would command if the 12

merchandise were legitimate does not volunteer that the goods were hijacked, and the fence does 13

not ask. If judges were to adopt a rule that a charge on conscious avoidance may not be given 14

absent evidence that the defendant took affirmative steps to avoid gaining knowledge of the 15

incriminating facts, the doctrine would cease to f unction in the very circumstances for which it is 16

most needed. Such a ruling would issue a free pass to dealers in contraband without serving a 17

useful purpose in distinguishing the guilty from the innocent. Protection of careless innocents is 18

provided by the rule that the charge is allowed only when the circumstances will sustain a 19

finding beyond a reasonable doubt that the defendant was aware of a high probability of the 20

incriminating fact, but consciously chose to act in furtherance of the venture without learning the 21

incriminating truth, as well as by the content of the instruction. 1 2 22

1 The instruction also requires the jury to find that the defendant does not actually believe in a

contrary fact. See

, e.g.

, United States v. Sicignano , 78 F.3d 69, 71 (2d Cir. 1996) (citations

5Nor is there merit in Fofanah’s further contention that evidence of a defendant’s actual 1

knowledge of the incriminating facts precludes a charge on conscious avoidance of those facts. 2

In United States v. Aina-Marshall , 336 F.3d 167 (2d Cir. 2003), we upheld the propriety of the 3

conscious avoidance instruction notwithstanding extensive evidence supporting the defendant’s 4

actual knowledge that she was transporting illegal drug contraband in her suitcase. (Nor did we 5

require evidence that the defendant took affirmative steps to avoid knowledge of the facts.) 6

There was testimony that (i) when a customs agent moved some of the top-layer items in the 7

defendant’s suitcase in a manner that exposed the hidden packages of drugs, the defendant 8

reached in and moved other contents so as to cover once again the exposed packages; (ii) the 9

defendant gave the customs agent an incorrect address for her sister in the United States, even 10

omitted). We have also emphasized that, to be convicted on a conscious avoidance theory, “the

defendant [cannot] be shown . . . merely to ha ve failed to learn [a culpable fact] through

negligence.” United States v. Rodriguez , 983 F.2d 455, 458 (2d Cir. 1993). We have not

hesitated to vacate convictions based on an inadequately balanced conscious avoidance charge.

See

, e.g.

, United States v. Kaiser , 609 F.3d 556, 567 (2d Cir. 2010); United States v. Morales

, 577 F.2d 769, 775 (2d Cir. 1978).

2 I note that in Global-Tech Appliances , the Supreme Court used words that might be construed

as confirming the defendant’s argument that “the defendant must take deliberate actions to avoid

learning of [the culpable] fact.” Global-Tech Appliances, Inc. v. SEB S.A. , 131 S. Ct. 2060, 2070

(2011). That would be a misunderstanding of the Court’s discussion. The discussion arose out of

a civil patent infringement claim in which the defendant’s liability depended on knowing

infringement, and the Federal Circuit had affirmed liability based on a finding of deliberate

indifference, see id. at 2064-65, a doctrine that has much in common with conscious avoidance

or willful blindness. When discussing the willf ul blindness (or conscious avoidance) doctrine,

the Court was merely summarizing what it understood to be the uniform standards approved by

the various circuits. It stated that “all [the circuits] appear to agree on two basic requirements,

[including that] the defendant must take de liberate actions to avoid learning of that

[incriminating] fact.” Id. at 2070. However, the Court was mistaken in that observation. At the

conclusion of the sentence, the Court added a footnote in which it reviewed the requirements of

twelve circuits, as expressed in twelve differe nt opinions. In fact, none of the twelve circuit

opinions cited called for action on the part of the defendant to avoid learning of the culpable fact.

See id. at 2070 n.9. What the Supreme Court meant is better revealed by its statement that

“defendants cannot . . . deliberately shield[ ] them selves from clear evidence of critical facts that

are strongly suggested by the circumstances.” Id. at 2068-69. Thus, although on superficial

reading the Supreme Court’s opinion might seem to support Fofanah’s argument that deliberate

action is required, that would be a misreading, as the Court was merely (mistakenly)

summarizing what it understood to be the positions of the various circuits.

6though she had the correct address on her person; (iii) the defendant gave an extraordinarily 1

implausible explanation for her possession of the suitcase, explaining that she was asked by an 2

old friend in Nigeria (whom she had not seen in 10 years) to bring it to the friend’s brother; (iv) 3

the heroin in the suitcase weighed over 50 pounds; and (v) when the customs agent found the 4

packages that contained drugs, the defendant “looked heavenward and shook her head slowly 5

from side to side.” Aina-Marshall , 336 F.3d at 168-69. Plainly, the holding of Aina-Marshall

, 6

decided several years after Ferrarini , is not compatible with the proposition that evidence of the 7

defendant’s actual knowledge of the incriminating facts precludes an instruction on conscious 8

avoidance of knowledge of those facts. 9

What is determinative is not whether there is evidence in the record of actual knowledge. 10

It is rather whether the evidence can support a finding that the defendant was aware of so high a 11

probability of the incriminating facts that the defendant either knew the truth, or if not, it was 12

because the defendant consciously decided to act without confirming the highly probable 13

incriminating truth. See Svoboda , 347 F.3d at 480-81. 14

Evidence that the defendant knew the incriminating truth does not necessarily support a 15

finding that the defendant, while aware of the high probability of the incriminating fact, 16

consciously closed his eyes to these facts. If, for example, the defendant was charged with 17

knowing possession of stolen computers, and the only evidence bearing on the defendant’s 18

knowledge that the computers in his possession were stolen was evidence showing that the 19

defendant himself held up a computer store at gunpoint and stole the computers (or alternatively 20

that the defendant said, “I am trying to sell the stolen computers”), such evidence would 21

powerfully support the defendant’s knowledge that the computers were stolen, but would not 22

support the position that the defendant consciously chose not to learn that incriminating fact. 23

7Such a record might well sustain the argument that a conscious avoidance charge was not 1

permissible. Thus, in Ferrarini , we concluded that, while there was evidence of the defendants’ 2

actual knowledge, there was no evidence that coul d support a finding of the defendants’ decision 3

to act while deliberately avoiding learning the truth. Ferrarini , 219 F.3d at 157-58. Because of 4

the absence of such evidence, the charge could not be justified. 5

Nonetheless, as we specifically noted in Svoboda , in some circumstances, “the same 6

evidence that will raise an inference that the defendant had actual knowledge of the illegal 7

conduct . . . will also raise the inference that the defendant was subjectively aware of a high 8

probability of the existence of [the incriminating facts].” Svoboda , 347 F.3d at 480. In those 9

circumstances, “a defendant’s involvement in the criminal offense may have been so 10

overwhelmingly suspicious that the defendant’s failure to question the suspicious circumstances 11

establishes the defendant’s purposeful contrivance to avoid guilty knowledge.” 3 Id. What follows 12

is that evidence of actual guilty knowledge will sometimes support a conscious avoidance charge 13

and sometimes will not. This turns on whether the evidence supporting guilty knowledge is of 14

such a character that it also supports the proposition that the defendant was aware of a high 15

probability of the incriminating facts, but consciously chose to be blind to the truth. The point of 16

Ferrarini is that the propriety of a conscious avoidance charge is not established by the presence 17

of evidence of actual knowledge. If, however, the evidence supporting actual knowledge is of 18

such character that it also supports a finding beyond a reasonable doubt that the defendant was 19

aware of a high probability of the incriminating f act, and nonetheless acted in furtherance of the 20

3 While our opinions generally speak of “suspicious circumstances” without adding that the

suspicious nature of the circumstances must be apparent to the defendant, it seems clear this

component was intended and is necessary. Unless the evidence supports the likelihood that the

suspicious circumstances were apparent to the defendant, it would not seem to support a theory

of conscious avoidance.

8venture conscious of his ignorance of the true facts, then evidence tending to show the 1

defendant’s knowledge will also support a charge on conscious avoidance. Fofanah’s argument 2

that, under Ferrarini , evidence of the defendant’s knowledge of the incriminating facts precludes 3

a charge on conscious avoidance of them is simply a misreading of the opinion. 4

The argument is also defective for the further reason that it overlooks the jury’s 5

entitlement to accept some evidence and reject other evidence. Even assuming that some of the 6

evidence against Fofanah is of the sort that shows actual knowledge but cannot support a finding 7

of conscious avoidance of actual knowledge, still such evidence would not preclude a proper 8

charge on conscious avoidance, so long as the evidence also included sufficient evidence of the 9

sort that would support a finding of a conscious or deliberate failure to learn the truth. For 10

example, even if some of the evidence against Fofanah was tantamount to an explicit admission 11

by Fofanah that he knew the cars were stolen – evidence which is difficult or impossible to 12

reconcile with a finding of willful, or conscious, blindness – the jury might reject that evidence 13

while accepting other evidence that is compatible with a finding of conscious avoidance. In other 14

words, the presence or absence of evidence establishing actual knowledge has no bearing on 15

whether the conscious avoidance charge is appropriate. What matters is whether there is 16

evidence that supports the standard for giving the charge on conscious avoidance, regardless of 17

whether that evidence might also support a finding of actual knowledge. In Ferrarini, we 18

concluded there was no such evidence. The impropriety of the charge in Ferrarini depended not 19

on the fact that there was evidence of actual knowledge but on the absence of evidence that 20

could support a finding of conscious avoidance. 21

Our decision in United States v. Kaplan , 490 F.3d 110 (2d Cir. 2006), which Fofanah 22

does not cite, comes close to expressly rejecting his argument. Kaplan was convicted of 23

9participation in a witness tampering scheme, by a jury, which was charged on conscious 1

avoidance. On his appeal, we agreed with his contention that the charge should not have been 2

given for lack of evidence establishing a factual predicate for the charge (although concluding 3

the error was harmless). Citing Ferrarini , we explained that “[e]vidence sufficient to find actual 4

knowledge does not necessarily constitute evidence sufficient to find conscious avoidance.” Id. 5

at 127. While agreeing with his contention that the charge should not have been given, we 6

explicitly rejected an argument he made – very similar to Fofanah’s contention here – “that it 7

was error for the district court to give a conscious avoidance charge when the government 8

argued actual knowledge in the alternative.” Id. at 128 n.7. We explained: 9

Although we noted in Ferrarini that evidence sufficient to 10

find actual knowledge does not necessarily establish a factual 11

predicate for conscious avoidance, 219 F.3d at 157, we have held 12

that a conscious avoidance charge is “not inappropriate merely 13

because the Government has primarily attempted to prove that the 14

defendant had actual knowledge, while urging in the alternative 15

that if the defendant lacked such knowledge it was only because he 16

had studiously sought to avoid knowing what was plain.” United 17

States v. Hopkins , 53 F.3d 533, 542 (2d Cir. 1995). So long as the 18

Government can establish a factual predicate for conscious 19

avoidance, it is free to argue alternative theories of conscious 20

avoidance and actual knowledge. 21

Id. 22

In other words, there is no incompatibility between proof of actual knowledge and a 23

charge on conscious avoidance. The government is free to pursue both routes simultaneously as 24

alternative theories. Pursuit of the conscious avoidance theory depends on whether the evidence 25

can support the required predicate, regardless of whether the evidence can also support, and the 26

government also argues, actual knowledge. Accordingly, there is no merit to Fofanah’s argument 27

that the existence of evidence showing his actual knowledge that the vehicles were stolen 28

precluded the giving of the charge of conscious avoidance. And there is no inconsistency 29

10between the standards we espoused in such cases as Svoboda and Aina-Marshall in upholding 1

the propriety of the conscious avoidance charge, and those which supported disapproval of the 2

charge in Ferrarini and Kaplan . The different appraisals were attributable to factual differences 3

between the two sets of cases. 4

The only question as to the propriety of the conscious avoidance charge in this case is 5

whether the evidence, regardless of whether it could or could not support a finding of actual 6

knowledge, could support a finding beyond a reasonable doubt that the circumstances apparent 7

to the defendant were sufficiently suspicious that, if he was ignorant of the highly probable 8

incriminating facts, he acted with conscious aw areness of his ignorance. The evidence recited in 9

our per curiam opinion as showing that Fofanah actually knew the cars were stolen also, in my 10

view, satisfied the standard for a finding of his conscious avoidance. 4 11

4 Many circuits approve charging the jury in this fashion in appropriate circumstances. While the

standards among the various circuits are generally in agreement, there are small differences in

the terminology used. Some circuits, like ours, use the term “conscious avoidance,” while others

use “willful blindness.” (“Deliberate ignorance” is also used.) The Supreme Court discussed the

doctrine with approval in Global-Tech Appliances, Inc. v. SEB S.A. , 131 S. Ct. 2060, 2070

(2011), employing the term, “willful blindness” (which appears to be used in a plurality of

circuits). In United States v. Coplan , 703 F.3d 46 (2d Cir. 2012), and United States v. Ferguson

, 676 F.3d 260 (2d Cir. 2011), we said that the Supreme Court “appears to now prefer” willful

blindness over conscious avoidance

. Coplan , 703 F.3d at 89 n.39; Ferguson , 676 F.3d at 278

n.16. I do not think this is quite correct. On my reading of Global-Tech Appliances, the Supreme

Court expressed no preference. It merely noted the currency of both terminologies and used one

of them, essentially treating them as equivalents. Nor did the Court advert to any substantive

differences that depend on which terminology is used. To the contrary, the Court treated the

prerequisites and content of the charge as substantially identical, regardless of which

terminology is employed.

In my view, there are potential subtle differences that can flow from those labels,

especially to the extent that the labels are employed in the charge itself, or in the definition of the

prerequisite standards for its use. I believe there are small disadvantages to each of the two most

common formulations, and that a preferable formulation might result from a combination of their

elements.

The disadvantage of the term willful blindness lies in that the word “willful” ordinarily

describes an intentional purpose to achieve a desired result, as opposed to conscious and willing

11acceptance. Although it is true that in many common instances the defendant as to whom the

charge is invoked does intend purposively not to know the incriminating facts, it seems to me the

propriety of the charge should not depend on that willful, purposive intention. In some instances,

a defendant who enthusiastically joins others in a criminal venture, well aware of suspicious

circumstances that support a high probability that the venture is criminal and indeed assuming it

to be criminal, but without having been informed by his colleagues of the true incriminating

facts, would like to know (and perhaps asks unsuccessfully to be told) all the incriminating

details – not because his participation would depe nd on being assured that the venture is lawful,

but simply out of curiosity or because he wants to be included as a trusted full partner in the

crime. Such a defendant may undertake to build a bomb, forge police credentials, drive the

getaway car, etc., doing this at the request of colleagues who refuse his entreaties to be told

whether the criminal objective is a murder, a bank or jewelry store heist, an extortion, or the

destruction of a facility. The charge (with suitable modifications) should be appropriate for such

a willful participant in an obviously criminal venture, notwithstanding that it was his cocriminals’ choice, rather than his own, that he remain ignorant of the details. The “willful” in the

descriptive label “willful blindness” seems misplaced; the phenomenon the charge should cover

is a defendant who joins willfully in a venture that the circumstances show him is obviously

criminal (and which he assumes is criminal) while conscious of his ignorance of the criminal

details.

The word “avoidance,” as a component of the term conscious avoidance, seems to me to

have the same shortcoming as noted above in the word “willful.” One who avoids something has

an intention not to encounter or confront it. A defendant who willfully joins others in an

obviously criminal venture, who doesn’t know what crime he is joining in only because his cocriminals refuse his request for details, is not accurately described as “avoiding” the

incriminating information. As for the appropriateness of the charge, there is no good reason to

distinguish between the defendant who has chosen not to know the details of the crime he

participates in and the defendant who asks his criminal colleagues for the details but they refuse

to tell him. The charge should cover the latter defendant as well as the former, so long as he

assumes, based on what is obvious, that the venture he is joining in is criminal and he

nonetheless willfully participates.

For these reasons, it seems to me that a term combining the best elements of both –

something like conscious blindness , (or perhaps, forgoing the metaphor, conscious ignorance )

would be closer to the mark than either conscious avoidance or willful blindness

.

12