United States v. Diakhoumpa, 16-4289-cr(L)

Defendant Mamadou Diakhoumpa, a lawful permanent resident, was convicted after a five-day jury trial of unlawful importation of counterfeit goods (18 U.S.C. § 545) and trafficking in counterfeit goods (18 U.S.C. § 2320).
Evidence showed Diakhoumpa imported and sold counterfeit goods at a Bronx store, received multiple Customs notices and cease-and-desist letters from luxury brands, and was confronted by a brand investigator whose letter he signed.
At trial the district court instructed the jury on both actual knowledge and conscious avoidance; the conscious-avoidance instruction omitted the usual affirmative language that an actual (but unreasonable) belief the goods were genuine requires acquittal.
Diakhoumpa appealed, raising (1) error in the conscious-avoidance jury charge, (2) substantive unreasonableness of a 366-day sentence (arguing deportation consequences), and (3) the restitution award of $12,026.35 to the brands for investigative expenses.
The Second Circuit affirmed: it found the instructional error harmless because of overwhelming evidence of actual knowledge, upheld the below-Guidelines 366-day sentence as reasonable, and affirmed the restitution award as a permissible reasonable estimate of victims’ pecuniary loss.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jury instruction on conscious avoidance	Govt: instruction permissible; conscious avoidance may substitute for actual knowledge when supported	Diakhoumpa: instruction omitted that actual (even unreasonable) belief in genuineness requires acquittal; this omission prejudiced him	Affirmed — omission was error but harmless because actual-knowledge charge plus overwhelming evidence negated prejudice
Sentence length and collateral deportation	Govt: 366 days within court’s discretion; district considered deportation and family ties	Diakhoumpa: 366 days forces deportation; 364 days would avoid mandatory detention and is less severe overall	Affirmed — sentence was below Guidelines, court considered collateral consequences; not substantively unreasonable
Restitution to brands for investigative costs	Govt: MVRA permits restitution to identifiable victims for pecuniary loss; victims’ statements provide reasonable estimate	Diakhoumpa: restitution excessive or unsupported	Affirmed — district court reasonably estimated loss and did not abuse discretion
Standard of review for charge error	Govt: any error harmless given actual knowledge evidence	Diakhoumpa: plain error requiring reversal	Court applied plain-error review and found no impact on substantial rights

United States v. Ghailani, 733 F.3d 29 (2d Cir. 2013) (defines plain-error framework on appeal)
United States v. Sicignano, 78 F.3d 69 (2d Cir. 1996) (conscious-avoidance instruction requires limiting language protecting actual belief defense)
United States v. Ferrarini, 219 F.3d 145 (2d Cir. 2000) (describes conscious avoidance as substitute proof of knowledge)
Marcus v. United States, 560 U.S. 258 (2010) (harmless-error principles applied to jury instructions)
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc) (standard for substantive-reasonableness review of sentences)
United States v. Grant, 235 F.3d 95 (2d Cir. 2000) (restitution reviewed for abuse of discretion)
United States v. Bengis, 631 F.3d 33 (2d Cir. 2011) (MVRA restitution principles for identifiable victims)
United States v. Uddin, 551 F.3d 176 (2d Cir. 2009) (district court may make a reasonable estimate of victims’ losses for restitution)