Lead Opinion
Judge LEVAL joins in this per curiam opinion and concurs in a separate opinion.
Defendant Abdulai Fofanah appeals from a November 13, 2012 judgment en
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 2Bl.l(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 2Bl.l(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, Fofa-nah 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 ear they was going to load, you know, are no good.” Trial Tr. at 319. Sahm understood Fofa-nah 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, Fofa-nah 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 ears to Guinea because in Senegal “you have to
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. Fo-fanah 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,
“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,
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 harmless error if the jury was charged on actual knowledge and there was overwhelming evidence to support a finding that the defendant instead possessed actual knowledge of the fact at issue.” Ferrarini,
Second, there was overwhelming evidence that Fofanah had actual knowledge that the cars at issue were stolen. Fofa-nah told Sahm that the cars were “no good,” Trial Tr. at 319, which Sahm understood to mean stolen. Fofanah was present at a meeting where there was discussion of the fact that the titles for the cars being shipped did not match the actual cars, and he held title to one of the vehicles that appeared on a dock receipt that did not match the vehicle in the corresponding container.
At the time of his arrest, Fofanah was in possession of a shipping document that tied him to a container that he had assisted in loading with the cars. He admitted to participating in loading the shipping containers, and the cars that were loaded into the containers had all been stolen.
In addition, defendant engaged in a discussion with an undercover officer about how to ship cars abroad to Guinea as opposed to Senegal because it was less likely that real titles would have to be presented in Guinea. Fofanah also discussed with the undercover officer the practice of taking out the security system on a car before it is shipped to Africa, which is done to prevent law enforcement from locating the vehicle.
Accordingly, we hold that if the district court erred by instructing the jury on conscious avoidance in this case, any such error was harmless because the jury was instructed on actual knowledge and there was overwhelming evidence that Fofanah possessed actual knowledge that the cars at issue were stolen.
II. The Sentencing Enhancements
A. The Sophisticated Means Enhancement
Over Fofanah’s objection, the district court applied a sentencing enhancement pursuant to Section 2Bl.l(b)(10)(C) of the Guidelines for the sophisticated means that defendant used with respect to the offense conduct. Fofanah argues that the district court misapplied that Guideline because his offense conduct was not sufficiently complex to merit the enhancement. We disagree.
Section 2Bl.l(b)(10)(C) of the Guidelines provides that: “If ... the offense ... involved sophisticated means, increase by 2 levels. If the resulting offense level is less than level 12, increase to level 12.” The term “sophisticated means” is defined in the commentary to the Guidelines as “especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.” USSG § 2Bl.l(b)(10), comment. (n.8(B)).
The parties disagree about the standard of review that we should employ with respect to the district court’s application of the enhancement for sophisticated means under Section 2Bl.l(b)(10)(C). Relying on a case involving the application of an enhancement under Section 2T1.1 of the Guidelines, which concerns the use of sophisticated means in tax-evasion offenses, Fofanah argues that the standard of review is de novo, with due deference to the sentencing court’s application of the Guideline. See United States v. Lewis,
We need not wade into the nuances of the different standards of review because even on de novo review the sophisticated means enhancement was warranted in this case.
2. The Sophisticated Means Sentencing Enhancement Was Proper
We have recognized that the creation and use of false documents, and other tactics to conceal offense conduct, are indicia of the sophistication of an offense. Cf. United States v. Amico,
The repetitive and coordinated nature of Fofanah’s conduct further reveal the sophistication of the means he employed. See United States v. Finck,
Accordingly, the district court was correct to impose the sentencing enhancement based on the sophisticated means of Fofanah’s conduct in this case.
B. The Enhancement for Being “in the Business of Receiving and Selling Stolen Property”
Again over Fofanah’s objection, the district court imposed a sentencing enhancement for defendant being in the business of receiving and selling stolen property under Section 2B1.1(b)(4) of the Guidelines. On appeal, defendant argues that the enhancement was not warranted because the evidence failed to show the requisite sophistication and regularity of his actions to substantiate the conclusion that he was “in the business,” and there was no evidence that he was personally involved in the sale of stolen cars. We again disagree.
1. Legal Standards
Section 2Bl.l(b)(4) of the Guidelines provides that: “If the offense involved receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property, increase by 2 levels.” The commentary to that section of the Guidelines provides a non-exhaustive list of factors for the sentencing court to consider: “(A) The regularity and sophistication of the defendant’s activities. [¶] (B) The value and size of the inventory of stolen property maintained by the defendant. [¶] (C) The extent to which the defendant’s activities encouraged or facilitated other crimes. [¶] (D) The defendant’s past activities involving stolen property.” USSG § 2Bl.l(b)(4), comment. (n.5).
With respect to the standard of review governing this enhancement, the parties again disagree. Fofanah argues that our review should be de novo. See United States v. Carson,
Again, we need not resolve this question because even under the de novo standard the district court correctly imposed the Section 2Bl.l(b)(4) enhancement in this case.
2. The Enhancement for Being “in the Business” Was Warranted
With regard to whether Fofanah was in the business of receiving and selling stolen cars, the sophistication of Fofanah’s offenses, which is discussed earlier, weighs in favor of the enhancement under Section 2Bl.l(b)(4). See USSG § 2Bl.l(b)(4), comment. (n.5(A)) (recognizing sophistication as a relevant factor).
The regularity of Fofanah’s activities with respect to receiving and selling stolen vehicles also supports the enhancement at issue here. See id. (recognizing regularity as a relevant factor). Fofanah’s knowledge about the practices of Senegal versus Guinea with regard to how rigorous each
The value of the stolen cars is another factor that weighs in favor of the enhancement. See USSG § 2Bl.l(b)(4), comment. (n.5(B)) (recognizing the value of the stolen property as a relevant factor). Many of the stolen cars in this case were luxury vehicles, such as Range Rovers, Porsches, and BMW's, and the total value of the cars was over $500,000.
Fofanah also showed an interest in helping others engage in the type of car-shipping operation that he was involved in, which supports the enhancement. See id. § 2Bl.l(b)(4), comment. (n.5(C)) (recognizing as a relevant factor the extent to which the defendant’s activities encouraged other crimes). As noted earlier, Fofanah advised the undercover officer about shipping cars with bad titles to Guinea as opposed to Senegal, which showed that he had acquired a refined knowledge of the techniques for avoiding detection.
To the extent that Fofanah argues that there was insufficient evidence that he actually sold stolen vehicles, his contention is without merit. During the conversation that Fofanah had with Sahm and the undercover officer about removing a car security system and shipping cars to Guinea as opposed to Senegal, Fofanah concedes that he stated he could sell the officer a Dodge Senegal, Fofanah concedes that he stated he could sell the officer a 1 Dodge officer to sell, and revealed his knowledge of how much could be made from those sales. Thus, even if we were to hold that an enhancement under Section 2Bl.l(b)(4) would only be permissible where a defendant personally receives and sells stolen property — an issue we need not reach today — the enhancement would apply to Fo-fanah in this case.
Accordingly, the district court was correct to impose the sentencing enhancement for Fofanah being in the business of receiving and selling stolen property.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment and sentence of the district court.
Notes
. In other cases where the government has argued that the clear error standard governs a sophisticated means enhancement, we have taken a similar approach to the one we take here. See Ojemen,
. Section 2F1.1 of the Guidelines was deleted by consolidation with Section 2B1.1, effective November 1, 2001. See USSG § 2F1.1.
Concurrence Opinion
concurring:
Fofanah contends his conviction should be overturned because the court instructed the jury on conscious avoidance of guilty knowledge (or willful blindness to the incriminating fact that the cars were stolen) when the evidence, according to his argument, did not allow for such a charge. He bases his argument on our opinion in United States v. Ferrarini, in which we discussed the standards for such an instruction and concluded it should not have been given. See United States v. Ferrarini,
Fofanah reads Ferrarini as endorsing a standard that differs from the standard we have espoused in cases in which we upheld convictions concluding that the charge was properly given. His reading of Ferrarini
In United States v. Svoboda, decided subsequent to Ferrarini, we summarized the evidentiary requirements for a conscious avoidance charge. The defendants were charged with fraud in connection with the sale of securities. The defendant Robles appealed his conviction, contending the jury should not have been charged on conscious avoidance.
A conscious avoidance instruction “may only be given if (1) the defendant asserts the lack of some specific aspect of knowledge required for conviction, ... and (2) the appropriate factual predicate for the charge exists, i.e., ‘the evidence is such that a rational juror may reach [the] conclusion beyond a reasonable doubt ... that [the defendant] was aware of a high probability [of the fact in dispute] and consciously avoided confirming the fact[.]’ ” Ferrarini,219 F.3d at 154 .... The second prong of this test thus has two components — there must be evidence that the defendant (1) was aware of a high probability of the disputed fact and (2) deliberately avoided confirming that fact.... Moreover, the second prong may be established where, “[a] defendant’s involvement in the criminal offense may have been so overwhelmingly suspicious that the defendant’s failure to question the suspicious circumstances establishes the defendant’s purposeful contrivance to avoid guilty knowledge.”
Id. We stressed as well that the conscious avoidance of guilty knowledge “may not be established by demonstrating that the defendant was merely negligent, foolish or mistaken.” Id. at 481-82 (internal quotation marks omitted). Reviewing the evidence offered against Robles, we found that it conformed to the standard. We therefore upheld the propriety of the instruction and affirmed his conviction. Id. at 480-81, 485. (There was no evidence that Robles had taken affirmative steps to avoid acquiring knowledge of the incriminating facts.)
Although not always spelling out the standard in explicit terms, we have long consistently adhered to this standard. See, e.g., United States v. Aina-Marshall,
Fofanah now argues that Ferrarini calls for use of a very different standard. He contends that the instruction may not be given in the absence of evidence that the defendant took affirmative steps to avoid knowing the incriminating facts. He appears to argue as well that evidence of actual knowledge is not compatible with an instruction on conscious avoidance. His arguments, however, are based on a misreading of Ferrarini.
In Ferrarini, our court accepted the argument of defendants Vieira and Kagan that the government had not established a factual predicate for the conscious avoidance charge (although going on nonethe
This discussion in Ferrarini, properly understood, does not support Fofanah’s arguments. It means neither that there must be evidence of affirmative steps taken by the defendant to avoid learning the truth, nor that evidence of the defendant’s actual knowledge precludes a charge on conscious avoidance. It means only, as we have repeatedly stated in reciting the standard, that there must be evidence from which a jury could find that the defendant was aware of a high probability of the critical incriminating facts and consciously decided to act without confirming them.
What we said in Ferrarini does not support Fofanah’s argument that the conscious avoidance charge may not be given without a showing of affirmative steps taken by the defendant to ensure that he does not learn the truth. Our statements that the evidence must support a finding that the defendant “consciously” or “deliberately” avoided referred to a requisite state of mind, not to a need for affirmative acts. Conviction on a conscious avoidance theory cannot be justified either by the defendant’s failure to try hard enough to learn the incriminating facts or by the fact that the defendant’s circumstances “should have apprised [the defendant] of the unlawful nature of [his] conduct.” Id. at 157 (quoting United States v. Rodriguez,
Apart from the fact that our precedents have not required a showing of affirmative acts designed to avoid acquiring guilty knowledge, such a requirement would make the doctrine ill-suited to its purpose and inconsistent with the habits of well-advised, self-protective criminal conduct. In many types of criminal enterprise, the asking of unnecessary questions and need
Nor is there merit in Fofanah’s further contention that evidence of a defendant’s actual knowledge of the incriminating facts precludes a charge on conscious avoidance of those facts. In United States v. Ainar-
What is determinative is not whether there is evidence in the record of actual knowledge. It is rather whether the evidence can support a finding that the defendant was aware of so high a probability of the incriminating facts that the defendant either knew the truth, or if not, it was because the defendant consciously decided to act without confirming the highly probable incriminating truth. See Svoboda,
Evidence that the defendant knew the incriminating truth does not necessarily support a finding that the defendant, while aware of the high probability of the incriminating fact, consciously closed his eyes to these facts. If, for example, the defendant was charged with knowing possession of stolen computers, and the only evidence bearing on the defendant’s knowledge that the computers in his possession were stolen was evidence showing that the defendant himself held up a computer store at gunpoint and stole the computers (or alternatively that the defendant said, “I am trying to sell the stolen computers”), such evidence would powerfully support the defendant’s knowledge that the computers were stolen, but would not 23 support the position that the defendant consciously chose not to learn that incriminating fact. Such a record might well sustain the argument that a conscious avoidance charge was not permissible. Thus, in Ferrarini, we concluded that, while there was evidence of the defendants’ actual knowledge, there was no evidence that could support a finding of the defendants’ decision to act while deliberately avoiding learning the truth. Ferrarini,
Nonetheless, as we specifically noted in Svoboda, in some circumstances, “the same evidence that will raise an inference that the defendant had actual knowledge of the illegal conduct ... will also raise the inference that the defendant was subjectively aware of a high probability of the existence of [the incriminating facts].” Svoboda,
The argument is also defective for the further reason that it overlooks the jury’s entitlement to accept some evidence and reject other evidence. Even assuming that some of the evidence against Fofanah is of the sort that shows actual knowledge but cannot support a finding of conscious avoidance of actual knowledge, still such evidence would not preclude a proper charge on conscious avoidance, so long as the evidence also included sufficient evidence of the sort that would support a finding of a conscious or deliberate failure to learn the truth. For example, even if some of the evidence against Fofanah was tantamount to an explicit admission by Fo-fanah that he knew the cars were stolen— evidence which is difficult or impossible to reconcile with a finding of willful, or conscious, blindness — the jury might reject that evidence while accepting other evidence that is compatible with a finding of conscious avoidance. In other words, the presence or absence of evidence establishing actual knowledge has no bearing on whether the conscious avoidance charge is appropriate. What matters is whether there is evidence that supports the standard for giving the charge on conscious avoidance, regardless of whether that evidence might also support a finding of actual knowledge. In Ferrarmi, we concluded there was no such evidence. The impropriety of the charge in Ferrarmi depended not on the fact that there was evidence of actual knowledge but on the absence of evidence that could support a finding of conscious avoidance.
Our decision in United States v. Kaplan,
Although we noted in Ferrarini that evidence sufficient to find actual knowledge does not necessarily establish a factual predicate for conscious avoidance,219 F.3d at 157 , we have held that a conscious avoidance charge is “not inappropriate merely because the Government has primarily attempted to prove that the defendant had actual knowledge, while urging in the alternative that if the defendant lacked such knowledge it was only because he had studiously sought to avoid knowing what was plain.” United States v. Hopkins,58 F.3d 533 , 542 (2d Cir.1995). So long as the Government can establish a factual predicate for conscious avoidance, it is free to argue alternative theories of conscious avoidance and actual knowledge.
Id.
In other words, there is no incompatibility between proof of actual knowledge and a charge on conscious avoidance. The government is free to pursue both routes simultaneously as alternative theories. Pursuit of the conscious avoidance theory depends on whether the evidence can support the required predicate, regardless of whether the evidence can also support, and the government also argues, actual knowledge. Accordingly, there is no merit to Fofanah’s argument that the existence of evidence showing his actual knowledge that the vehicles were stolen 29 precluded the giving of the charge of conscious avoidance. And there is no inconsistency between the standards we espoused in such cases as Svoboda and Aina-Marshall in upholding the propriety of the conscious avoidance charge, and those which supported disapproval of the charge in Fer-rarini and Kaplan. The different appraisals were attributable to factual differences between the two sets of cases.
The only question as to the propriety of the conscious avoidance charge in this case is whether the evidence, regardless of whether it could or could not support a finding of actual knowledge, could support a finding beyond a reasonable doubt that the circumstances apparent to the defendant were sufficiently suspicious that, if he was ignorant of the highly probable incriminating facts, he acted with conscious awareness of his ignorance. The evidence recited in our per curiam opinion as showing that Fofanah actually knew the cars were stolen also, in my 11 view, satisfied the standard for a finding of his conscious avoidance.
. The instruction also requires the jury to find that the defendant does not actually believe in a contrary fact. See, e.g., United States v. Sicignano,
. I note that in Global-Tech Appliances, the Supreme Court used words that might be construed as confirming the defendant's argument that "the defendant must take deliberate actions to avoid learning of [the culpable] fact." Global-Tech Appliances, Inc. v. SEB S.A.,-U.S.-,
. While our opinions generally speak of "suspicious circumstances” without adding that the suspicious nature of the circumstances must be apparent to the defendant, it seems clear this component was intended and is necessary. Unless the evidence supports the likelihood that the suspicious circumstances were apparent to the defendant, it would not seem to support a theory of conscious avoidance.
. Many circuits approve charging the jury in this fashion in appropriate circumstances. While the standards among the various circuits are generally in agreement, there are small differences in the terminology used. Some circuits, like ours, use the term "conscious avoidance,” while others use "willful blindness.” ("Deliberate ignorance” is also used.) The Supreme Court discussed the doctrine with approval in Global-Tech Appliances, Inc. v. SEB S.A., - U.S. -,
In my view, there are potential subtle differences that can flow from those labels, especially to the extent that the labels are employed in the charge itself, or in the definition of the prerequisite standards for its use. I believe there are small disadvantages to each of the two most common formulations, and that a preferable formulation might result from a combination of their elements.
The disadvantage of the term willful blindness lies in that the word "willful” ordinarily describes an intentional purpose to achieve a desired result, as opposed to conscious and willing acceptance. Although it is true that in many common instances the defendant as to whom the charge is invoked does intend pur-posively not to know the incriminating facts, it seems to me the propriety of the charge should not depend on that willful, purposive intention. In some instances, a defendant who enthusiastically joins others in a criminal venture, well aware of suspicious circumstances that support a high probability that the venture is criminal and indeed assuming it to be criminal, but without having been informed by his colleagues of the true incriminating facts, would like to know (and perhaps asks unsuccessfully to be told) all the incriminating details — not because his participation would depend on being assured that the venture is lawful, but simply out of curiosity or because he wants to be included as a trusted full partner in the crime. Such a defendant may undertake to build a bomb, forge police credentials, drive the getaway car, etc., doing this at the request of colleagues who refuse his entreaties to be told whether the criminal objective is a murder, a bank or jewelry store heist, an extortion, or the destruction of a facility. The charge (with suitable modifications) should be appropriate for such a willful participant in an obviously criminal venture, notwithstanding that it was his co-criminals’ choice, rather than his own, that he remain ignorant of the details. The "willful” in the descriptive label “willful blindness” seems misplaced; the phenomenon the charge should cover is a defendant who joins willfully in a venture that the circumstances show him is obviously criminal (and which he assumes is criminal) while conscious of his ignorance of. the criminal details.
The word "avoidance,” as a component of the term conscious avoidance, seems to me to have the same shortcoming as noted above in the word "willful.” One who avoids something has an intention not to encounter or confront it. A defendant who willfully joins others in an obviously criminal venture, who doesn't know what crime he is joining in only because his co-criminals refuse his request for details, is not accurately described as “avoiding” the incriminating information. As for the appropriateness of the charge, there is no good reason to distinguish between the defendant who has chosen not to know the details of the crime he participates in and the defendant who asks his criminal colleagues for the details but they refuse to tell him. The charge should cover the latter defendant as well as the former, so long as he assumes, based on what is obvious, that the venture he is joining in is criminal and he nonetheless willfully participates.
For these reasons, it seems to me that a term combining the best elements of both— something like conscious blindness, (or perhaps, forgoing the metaphor, conscious ignorance) would be closer to the mark than either conscious avoidance or willful blindness.