1 16-4159 U.S. v. Georgescu

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

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OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 2
27 th day of October, two thousand seventeen. 3

4 Present: JOHN M. WALKER, JR., 5 ROSEMARY S. POOLER, 6 Circuit Judges

. 7 GEOFFREY W. CRAWFORD, 1 8 District Judge

. 9

10

_____________________________________________________ 11

12 UNITED STATES OF AMERICA, 13

14 Appellees

, 15

16
v. 16-4159-cr 17

18 VIRGIL FLAVIU GEORGESCU, 19

20 Defendant-Appellant

. 21

_____________________________________________________ 22

23 Appearing for Appellant: Steven M. Witzel, Fr ied, Frank, Harris, Shri ver, & Jacobson LLP 24 (Jennifer L. Colyer, Michael P. Sternheim, on the brief ), New 25 York, NY 26

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1 Judge Geoffrey W. Crawford, Un ited States District Court for th e District of Vermont, sitting by designation.2 Appearing for Appellee: Andrea L. Su rratt, Assistant United States Attorney, for Joon H. 1 Kim, Acting United States Attorney for the Southern District of 2 New York (Ilan Graff, Karl Me tzner, Assistant United States 3 Attorneys, on the brief ), New York, NY. 4

5 Appeal from the United States Di strict Court for the Southern Di strict of New York (Abrams, J. ). 6

7 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 8
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

. 9

10 Appellant Virgil Flaviu Georgescu app eals from the December 6, 2016 judgment of the 11
United States District Court for the Sout hern District of New York (Abrams, J. ), finding him 12 guilty of conspiracy to kill officers and employees of the United States, in violation of 18 U.S.C. 13 §§ 1117, 3238 and conspiracy to provide material support or resources to a foreign terrorist 14 organization, in violation of 18 U.S.C. §§ 2339B(a)(1), 2339B(d)(1)(C), 2339B(d)(1)(D), 15 2339B(d)(1)(E), 3238. Specifically, Georgescu challe nges the jury inst ructions regarding 16 negation of intent and the entrap ment by estoppel defense. We assume the parties’ familiarity 17 with the underlying facts, pr ocedural history, and specifica tion of issues for review. 18

19 “To secure reversal based on a flawed jury instruction, a defendant must demonstrate 20 both error and ensuing prejudice.” U.S. v. Quinones , 511 F.3d 289, 313 (2d Cir. 2007) (citation 21 omitted). We review jury instructions de novo to determine whether they were erroneous. Id. at 22 314; see also U.S. v. Coppola , 671 F.3d 220, 247 (2d Cir. 2012). An erroneous jury charge is 23 prejudicial when it “misleads the jury as to th e correct legal standard or does not adequately 24 inform the jury on the law.” Anderson v. Branen , 17 F.3d 552, 556 (2d Cir. 1994); see also 25 Quinones , 511 F.3d at 314. 26

27 A criminal defendant prevails on an entrapme nt by estoppel defense if he can show that 28 “the government, by its own actions, induced him to do [criminal conduct] and led him to rely 29 reasonably on his belief that his actions would be lawful by reason of the government’s seeming 30
authorization.” U.S. v. Giffen , 473 F.3d 30, 41 (2d Cir. 2006) (emphasi s in original). The district 31 court instructed the jury of the availa bility of this defense to Georgescu. 32

33 Georgescu’s sole contention with respect to this aspect of the jury instructions is that it 34 improperly focuses on whether “a government official made affirmative statements” and engaged 35
in “ affirmative conduct” that led Georgescu to believe he was authori zed to act as he did. He 36 argues the balance of our prior decisions indicates that provi ding evidence of affirmative 37 statements or conduct by a government agen t is not required in this context. 38

39 These arguments are unconvincing. We have never wavered from the proposition that 40 defendants asserting entrapment by estoppel must show that their belief that they were 41 authorized to commit the conduct in question is rooted in actual words or deeds by an actual 42 agent of the government. See Giffen , 473 F.3d at 41 (“when the government, by its own actions

, 43 induced him to do those acts...”) (emphasis added); U.S. v. Abcasis , 45 F.3d 39, 43 (2d Cir. 44 1995) (“If a drug enforcement agent solicits a defendant...or effectively communicates an 45

assurance ...”) (emphasis added); U.S. v. Gil , 297 F.3d 93, 107 (2d Cir. 2002) (“[t]his defense 463 arises where a government agent authorizes a defendant...”) (emphasis added). 1 There are 1 various ways to express this requirement. In U.S. v. Miles , our most recent opinion on the 2 subject, we did so by saying th at “a defendant must show an affirmative assurance from the 3 government that his conduct was legal.” 748 F.3d 485, 489 (2d Cir. 2014) (emphasis added). 4
And in Abcasis , our first opinion on the subj ect, we approvingly discus sed our sister circuit’s 5 formulation that entrapment by estoppel “is warranted where a government agent affirmatively 6
misleads a defendant as to the lawfulness of his conduct.” 45 F.3d at 43 (emphasis added). 7

8 It may be the case that in some circumst ances the word “affirmative” would mislead a 9 jury into focusing on the government agent’s inte ntions rather than the defendant’s reasonable 10 interpretation of that agent’s actions. Certainly including “affirmative” is not required in jury 11 instructions for entrapment by estoppel. As we have frequently held, the meaning of jury 12
instructions is to be taken as a w hole, not through word-by-word parsing. See

, e.g. , U.S. v. 13
Mulder , 273 F.3d 91, 105 (2d Cir. 2001) (citation omitted); Victor v. Nebraska , 511 U.S. 1, 16 14 (1994). Here, the District Cour t’s jury instructi ons unambiguously point jurors to the 15 Georgescu’s interpretation of a government agent’ s actions, not to the act ual intent behind those 16
actions. 17

18 We find Georgescu’s argument that he should have been en titled to a separate jury 19 instruction on negation of intent equally unavailing. Ne gation of intent “is not an affirmative 20 defense, but rather an attempt to rebut the govern ment’s proof of the intent element of a crime by 21 showing that the defendant had a good-faith belief that he was acting with government 22
authorization.” Giffen , 473 F.3d at 43. We have so far declin ed to require any district court to 23 provide a jury instruction based on this doctrine due to our worry that it might “swallow the 24 actual public authority and entrap ment-by-estoppel defenses.” Id. Assuming we were to 25 recognize negation of intent, whether a jury instruction on it would be appropriate would 26 “depend on the precise elements of a crime,” spec ifically the “nature of the intent element.” Id. at 27 45. In other words, we would only apply it to t hose crimes where proof that a defendant knew 28 they were violating the law is re quired to establish the mens rea. 29

30 Generally knowledge of the law is assumed, but the Supreme Court has recognized some 31
crimes based on violations of t echnical requirements in which it must be affirmatively shown by 32 the prosecution to establish mens rea. See

, e.g. Liparota v. U.S. , 471 U.S. 419 (1985) (finding a 33 law that prohibited misappropriation of food st amps “knowingly...in any manner not authorized 34 by [the statute] or the regulati ons” required defendant to know the use violated the regulations); 35
Cheek v. U.S. , 498 U.S. 192 (1991) (prosecution for “willf ul” violations of tax laws requires 36 proving intent to violate those highly technical laws , not just inadvertent or mistaken mis37 filings); Ratzlaf v. U.S. , 510 U.S. 135 (1994) (prosecution for a “willful” viola tion of complex 38 bank regulation requires pr oving intent to structure transactions intending to violate those laws); 39 Bryan v. U.S. , 524 U.S. 184 (1998) (prosecution for a “w illful” violation of gun seller licensing 40 requirements requires proving intent to avoid the statutory requ irements). Only in such a 41 circumstance would providing evidence that defe ndants believed that they had been told by a 42 government official that their act ions did not amount to a viola tion of the law be probative of 43

1 Other opinions Georgescu cites quote one or more of the formulation of these three. U.S. v. Mergen , 764 F.3d 199, 205 (2d Cir. 2014) (quoting Giffen ); U.S. v. Williams , 526 F. App’x 29, 32 (2d Cir. 2013) (summary order) (quoting Gil and Abcasis ).4 mens rea. Where knowledge of legality is not an el ement of the offense, me ns rea only relates to 1 the behavior itself (and not to whether that be havior was illegal). In that circumstance, 2 defendants’ claim that they were authorized to ac t as they did can only be asserted as a defense. 3

4 The offenses of which Georgescu was convict ed below do not include intent to violate 5 the law as part of their mens rea; they require on ly intent to carry out the goals of the conspiracy. 6 Indeed, Georgescu knew what he and his co-consp irators were doing was ill egal. That is why he 7 originally offered to act as an informant. Whethe r he believed he was nevertheless authorized to 8 do so is probative of whether he was entitled to a defense to having done so, not whether he had 9 the requisite mens rea to be found guilty of conspiracy. See Aparicio v. Artuz , 269 F.3d 78, 98 10 (2d Cir. 2001) (“Affirmative defenses...negate crim inal liability for an offense, notwithstanding 11 that the State has otherwise prove n all the elements of that offe nse beyond a reasonable doubt.”). 12 He was allowed to present such a defense—entrapment by estoppel. 13

14 We have considered the remainder of George scu’s arguments and find them to be without 15 merit. Accordingly, the order of the district court hereby is AFFIRMED. 16

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FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20

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