United States v. Mavashev, 455 F. App'x 107

Mavashev was convicted after a jury trial in the Eastern District of New York of conspiracy to commit bank fraud, conspiracy to commit wire fraud, and three substantive counts of bank fraud, with a 120-month sentence, five years of supervised release, restitution, and special assessments.
The scheme involved NGF entities and mortgage closings with multiple properties funded by lenders lacking knowledge of other transactions, including some 100 percent financing and multi-property purchases by a single borrower.
Evidence at trial included eleven closings presided over by Mavashev and testimony about uncharged fraudulent transactions intended to show a pattern of conduct related to the charged offenses.
The government introduced uncharged acts as direct evidence of the conspiracy and pattern of conduct, arguing they were inextricably intertwined with charged transactions.
Agent Moriarty testified about his investigation and, during cross-examination, about interactions with Mavashev, including that Mavashev did not claim Khaimov duped him; the government did not elicit prearrest silence as case-in-chief.
The district court gave a conscious avoidance jury instruction, which the defense challenged, and the court admitted testimony and expert testimony under Rule 702 and 701.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a conscious avoidance instruction was proper	Mavashev argued the language was erroneous	Mavashev argued the charge was unwarranted or misworded	Harmless error; instruction proper given factual basis and evidence of actual knowledge.
Whether 404(b) evidence of uncharged acts was admissible	Evidence was direct proof of conspiracy and pattern of conduct	Evidence should be excluded as other crimes evidence	No abuse; testimony was inextricably intertwined and showed pattern related to charged offenses.
Whether Agent Moriarty’s testimony constituted improper expert testimony under Rule 702	Testimony provided needed expert context	Testimony could exceed lay opinion and require qualification	No abuse; if some testimony counted as expert, any error was harmless.
Whether prosecutorial summation violated rights through improper remarks	Prosecutor improperly urged wrongdoing beyond the record	Statements were permissible closing argument	No reversible error; statements were brief aberration in a strong case; not prejudicial.
Whether the sentence was substantively unreasonable	Sentence within reasonable range given crimes	Sentence excessive compared to co-conspirator	Sentence deemed procedurally and substantively reasonable within the totality of circumstances.

United States v. Svoboda, 347 F.3d 471 (2d Cir. 2003) (conscious avoidance standard framework)
United States v. Kaiser, 609 F.3d 556 (2d Cir. 2010) (danger of impermissible conscious avoidance language; need high probability awareness)
United States v. Aina-Marshall, 336 F.3d 167 (2d Cir. 2003) (harmless error where actual knowledge shown)
United States v. Rigas, 490 F.3d 208 (2d Cir. 2007) (recognizes limitations on expert testimony admissibility under Rule 702)
Towne v. United States, 870 F.2d 880 (2d Cir. 1989) (categories for uncharged acts admissible as direct evidence)
Papadakis, 510 F.2d 287 (2d Cir. 1975) (pattern of conduct evidence admissible where acts relate to charged offense)
Bank of China v. NBM LLC, 359 F.3d 171 (2d Cir. 2004) (Rule 701/702 distinction; harmless error analysis)