765 F.3d 141 (2nd Cir. 2014), 12-4617, United States v. Fofanah

Docket Nº:12-4617
Citation:765 F.3d 141
Opinion Judge:Per Curiam
Party Name:UNITED STATES OF AMERICA, Appellee, v. ABDULAI FOFANAH, AKA FODAY, AKA FODAY FOFANAH, AKA FODAY OSMAN FOFANAH, Defendant-Appellant
Attorney:DAVID A. LEWIS, Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant. IAN P. MCGINLEY, Assistant United States Attorney, (Preet Bharara, United States Attorney for the Southern District of New York; Brent S. Wible, Assistant United States A...
Judge Panel:Before: KATZMANN, Chief Judge, LEVAL and POOLER, Circuit Judges. Judge Leval joins in this per curiam opinion and concurs in a separate opinion. Leval, Circuit Judge, concurring:
Case Date:September 02, 2014
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
SUMMARY

Defendant appealed his conviction and sentence for conspiracy to transport stolen vehicles, transportation of stolen vehicles, and possession of stolen vehicles. The court concluded that it need not decide whether the district court erred in issuing the conscious avoidance instruction in this case because, if the instruction was in error, any such error was harmless. Further, the district court... (see full summary)

 
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Page 141

765 F.3d 141 (2nd Cir. 2014)

UNITED STATES OF AMERICA, Appellee,

v.

ABDULAI FOFANAH, AKA FODAY, AKA FODAY FOFANAH, AKA FODAY OSMAN FOFANAH, Defendant-Appellant

No. 12-4617

United States Court of Appeals, Second Circuit

September 2, 2014

Argued: October 25, 2013

Petition for certiorari filed at, 11/28/2014

Appeal from 1 a November 13, 2012 judgment entered in the United States District Court for the Southern District of New York (John F. Keenan, J.), convicting defendant Abdulai Fofanah after a jury trial of conspiracy to transport stolen vehicles, transportation of stolen vehicles, and possession of stolen vehicles. Fofanah challenges on appeal the district court's issuance of a conscious avoidance jury instruction and two sentencing enhancements that the district court imposed, one for the use of sophisticated means and another for being in the business of receiving and selling stolen property. We conclude that even if the issuance of the conscious avoidance jury instruction was error, any such error was harmless. We further hold that Fofanah's challenges to his sentence must fail. Judge Leval joins in this per curiam opinion and concurs in a separate 14 opinion.

Affirmed.

DAVID A. LEWIS, Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.

IAN P. MCGINLEY, Assistant United States Attorney, (Preet Bharara, United States Attorney for the Southern District of New York; Brent S. Wible, Assistant United States Attorney, on the brief), New York, NY, for Appellee.

Before: KATZMANN, Chief Judge, LEVAL and POOLER, Circuit Judges. Judge Leval joins in this per curiam opinion and concurs in a separate opinion.

OPINION

Page 142

Per Curiam

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

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in the United States District Court for the Southern District of New York (John F. Keenan, J.). Fofanah was convicted after a jury trial of conspiracy to transport stolen vehicles, in violation of 18 U.S.C. § 371; transportation of stolen vehicles, in violation of 18 U.S.C. § 2312; and possession of stolen vehicles, in violation of 18 U.S.C. § 2313. The district court sentenced defendant principally to 72 months of imprisonment and three years of supervised release.

On appeal, Fofanah challenges his conviction on the basis that it was impermissible for the district court to instruct the jury that it could convict him on the theory of conscious avoidance. Defendant also takes issue with the district court's imposition of sentencing enhancements for: (1) the use of " sophisticated means" under Section 2B1.1(b)(10)(C) of the Sentencing Guidelines of the United States Courts; and (2) being " in the business of receiving and selling stolen property" under Section 2B1.1(b)(4) of the Guidelines.

Because we conclude that any error in giving the contested jury instruction was harmless, and Fofanah's challenges to his sentence are without merit, we AFFIRM the judgment and sentence of the district court.

BACKGROUND

I. Facts

Fofanah's offense conduct consisted of his leadership role in a scheme to ship high-priced stolen cars from New York through a port in New Jersey to be sold in Guinea, Africa. Around May 2011, Fofanah called a trucker named Fousseni Traore Sahm about shipping some containers of cars to Guinea. Sahm met with Fofanah, and another man named Habib Diallo, about shipping the cars. Sahm testified that at that meeting with Habib, Fofanah told Sahm that " they was going to do some containers and it's not going to be one or two, and then the car they was going to load, you know, are no good." Trial Tr. at 319. Sahm understood Fofanah to mean that the cars were stolen. At that meeting, Habib showed Sahm the titles that they were going to use to ship the cars, and the titles did not match the cars actually being shipped.

To carry out the shipments, Fofanah would provide Sahm with a booking number that Sahm would use to go to the port to retrieve an empty shipping container. Sahm would bring the container to the Bronx, New York, and it would be loaded with cars in Fofanah's presence. Sahm testified that while the containers were being loaded Fofanah appeared " nervous" and was " always rushing us to finish the job and get out of there." Id. at 325.

Once the containers were loaded, Fofanah would pay Sahm, and Sahm or his drivers would take the containers back to the port to be shipped. Fofanah also provided Sahm with dock receipts, which are used to prove that the containers were delivered to the port. Sahm would obtain a stamp on the dock receipts and return the stamped receipts to Fofanah. During this time period that Fofanah had hired Sahm to transport the containers, Sahm was working with the police and he would contact the police when Fofanah wanted to load a container.

On June 14, 2011, Fofanah and Sahm met with a third man, who was an undercover officer. At that meeting, the undercover officer told Fofanah that the officer's brother (or the officer and his brother) wanted to start a car yard in Senegal, and the officer was seeking information from Fofanah about how to get titles for old cars. Fofanah told the undercover officer that it would be better to ship the cars to Guinea because in Senegal " you have to

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present the real title." Gov't's Add. at 4. Fofanah also advised the undercover officer about taking a security system, such as LoJack, out of cars before shipping them to Africa. At that meeting, Fofanah offered to sell a car to the undercover officer.

At the time of his arrest on June 20, 2011, Fofanah had in his possession a shipping document that tied him to a container that he helped load with cars. He admitted upon arrest that Habib had told him that the cars were " bad," Trial Tr. at 146, and that Fofanah had participated in loading the containers. The cars that Fofanah was involved in loading into the containers were stolen.

II. The District Court's Jury Instructions

At trial, the district court instructed the jury on what it means for a defendant to have actual knowledge of a fact. It also instructed the jury that the law " allows you to find that the defendant had knowledge of a fact when the evidence shows that he was aware of a high probability of that fact, but intentionally avoided confirming that fact. The law calls this 'conscious avoidance' or 'willful blindness.'" Id. at 647. The parties do not dispute that the district court gave the conscious avoidance instruction over Fofanah's objection.

III. Fofanah's Conviction and Sentence

The jury found Fofanah guilty on all counts, and the district court sentenced him principally to 72 months of imprisonment and three years of supervised release. The district court's sentence included two enhancements under the Guidelines, one for Fofanah's use of sophisticated means in the execution or concealment of the offense conduct, and the other for Fofanah being in the business of receiving and selling stolen property. Fofanah objected to each of those enhancements.

With regard to the sophisticated means enhancement, the court concluded that " [t]his was a very sophisticated scheme" that involved " 17 stolen high-priced cars that were going to be resold in Africa." Sentencing Tr. at 13. The court noted that the scheme was organized, and included " substituting the stolen cars for the cars on the shipping documents." Id.

The district court imposed the enhancement for Fofanah being in the business of receiving and selling stolen property based on the " regularity and sophistication of Mr. Fofanah's activities" and the amount of property involved--17 high-priced cars. Id. at 7.

DISCUSSION

I. The Conscious Avoidance Jury Instruction

A. Legal Standards

" 'A conscious avoidance instruction permits a jury to find that a defendant had culpable knowledge of a fact when the evidence shows that the defendant intentionally avoided confirming the fact.'" United States v. Kozeny, 667 F.3d 122, 132 (2d Cir. 2011) (quoting United States v. Ferrarini, 219 F.3d 145, 154 (2d Cir. 2000)), cert. denied sub nom. Bourke v. United States, 133 S.Ct. 1794, 185 L.Ed.2d 810 (2013). The test for when a conscious avoidance charge is permissible has two prongs. First, the defendant must " assert[] the lack of some specific aspect of knowledge required for conviction." Id. (internal quotation marks omitted). Second, there must be an " appropriate factual predicate for the charge . . . , i.e., the evidence is such that a rational juror may reach the conclusion beyond a reasonable doubt that the defendant was

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aware of a high probability of the fact in dispute and consciously avoided confirming that fact." Id. (internal quotation marks omitted); accord United States v. Cuti, 720 F.3d 453, 463 (2d Cir. 2013), petition for cert. filed, No. 13-1493 (U.S. Apr. 14, 2014); United States v. Svoboda, 347 F.3d 471, 480 (2d Cir. 2003).

" We review a claim of error in jury instructions de novo, reversing only where, viewing the charge as a whole, there was a prejudicial error." United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003).

B. The Conscious Avoidance Jury Instruction Here Was Harmless

Fofanah does not challenge the content of the district court's conscious avoidance jury instruction, but rather argues that the necessary factual predicate for giving the instruction was lacking. We need not decide whether the district court erred in issuing the conscious avoidance instruction in this case because, if the instruction was in error, any such error was harmless.

" [A]n erroneously given conscious avoidance instruction constitutes...

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