United States v. Fofanah
765 F.3d 141
2d Cir.2014Background
- Fofanah was convicted by jury of conspiracy to transport stolen vehicles (18 U.S.C. § 371), transportation of stolen vehicles (18 U.S.C. § 2312), and possession of stolen vehicles (18 U.S.C. § 2313); district court sentenced him principally to 72 months’ imprisonment and three years’ supervised release.
- The district court instructed the jury on conscious avoidance (willful blindness) as a theory of culpable knowledge.
- On appeal, Fofanah challenged the conscious avoidance instruction for lacking a proper factual predicate and challenged two Guidelines enhancements: sophisticated means (USSG § 2B1.1(b)(10)(C)) and being in the business of receiving and selling stolen property (USSG § 2B1.1(b)(4)).
- The panel held that any error in the conscious avoidance instruction was harmless given the actual knowledge instruction and overwhelming evidence of knowledge that the cars were stolen.
- The panel upheld the two sentencing enhancements, affirming the district court’s methodology and findings regarding sophistication, regularity, and value of stolen property.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the conscious avoidance instruction's predicate was met. | Fofanah argues lack of predicate for conscious avoidance. | Fofanah contends no high-probability, conscious avoidance evidence. | Harmless error; actual knowledge instruction plus overwhelming evidence support outcome. |
| Whether the sophisticated means enhancement was proper. | Fofanah argues the offense wasn’t sufficiently complex. | Government argues standard of review not dispositive; enhancement warranted. | Proper under USSG § 2B1.1(b)(10)(C) given fraudulent titles, coordination, and cross-jurisdictional scheme. |
| Whether the ‘in the business of receiving and selling stolen property’ enhancement was proper. | Fofanah challenges regularity/sophistication underpinning the enhancement. | Government asserts regularity, sophistication, and high value justify enhancement. | Proper based on regularity, sophistication, high value (over $500k), and enabling activities. |
Key Cases Cited
- United States v. Kozeny, 667 F.3d 122 (2d Cir.2011) (conscious avoidance standard adopted)
- United States v. Ferrarini, 219 F.3d 145 (2d Cir.2000) (set the standard for conscious avoidance; not always required)
- United States v. Svoboda, 347 F.3d 471 (2d Cir.2003) (defines predicate evidence for conscious avoidance)
- United States v. Cuti, 720 F.3d 453 (2d Cir.2013) (discusses conscious avoidance framework (cited))
- United States v. Aina-Marshall, 336 F.3d 167 (2d Cir.2003) (upholds conscious avoidance where applicable)
- United States v. Kaplan, 490 F.3d 110 (2d Cir.2007) (discusses evidence for conscious avoidance when government argues alternatives)
- United States v. Hopkins, 58 F.3d 533 (2d Cir.1995) (illustrates alternative theories of conscious avoidance)