United States v. Lowe
689 F. App'x 26
| 2d Cir. | 2017Background
- Kevin Lowe appealed his conviction for one count of conspiracy to distribute and possess with intent to distribute oxycodone.
- At trial, the district court gave a jury instruction on conscious avoidance; Lowe had jointly requested that instruction.
- During deliberations the jury sent a note asking for clarification on conspiracy elements and conscious avoidance; the district court replied by directing jurors to the written instructions and reiterating them.
- Lowe did not object at trial to the conscious-avoidance instruction and did not preserve objection to the district court’s response to the jury note.
- The Second Circuit reviewed the requested instruction claim as waived and reviewed the jury-note response for plain error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of conscious-avoidance jury instruction | Government: instruction appropriate to show knowledge when defendant deliberately avoided confirming illegal conduct | Lowe: instruction misstated law and should not have been given | Waived — Lowe requested the instruction; claim forfeited on appeal |
| Response to jury note asking for clarification on conspiracy and conscious avoidance | Government: district court’s direction to written instructions and reiteration was sufficient | Lowe: response was inadequate and created error affecting his conviction | No plain error — response, read in context of full charge, was legally sufficient |
Key Cases Cited
- United States v. Quinones, 511 F.3d 289 (2d Cir. 2007) (tactical failure to object can constitute true waiver)
- United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009) (appellate review declined where defendant approved instruction below)
- United States v. Vilar, 729 F.3d 62 (2d Cir. 2013) (plain-error framework explained)
- United States v. Marcus, 560 U.S. 258 (U.S. 2010) (plain-error standard elements)
- United States v. Gengo, 808 F.2d 1 (2d Cir. 1986) (supplemental charge assessed in context of instructions as a whole)
- United States v. Velez, 652 F.2d 258 (2d Cir. 1981) (same)
- United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010) (jury charge reviewed as an integrated whole)