United States v. Fofanah

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*143tered in the United States District Court for the Southern District of New York (John F. Keenan, J.). Fofanah was convicted after a jury trial of conspiracy to transport stolen vehicles, in violation of 18 U.S.C. § 371; transportation of stolen vehicles, in violation of 18 U.S.C. § 2312; and possession of stolen vehicles, in violation of 18 U.S.C. § 2313. The district court sentenced defendant principally to 72 months of imprisonment and three years of supervised release.

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 *144present the real title.” Gov’t’s Add. at 4. Fofanah also advised the undercover officer about taking a security system, such as LoJack, out of cars before shipping them to Africa. At that meeting, Fofanah offered to sell a car to the undercover officer.

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, 667 F.3d 122, 132 (2d Cir.2011) (quoting United States v. Ferrarini, 219 F.3d 145, 154 (2d Cir.2000)), cert. denied sub nom. Bourke v. United States, — U.S.—, 133 S.Ct. 1794, 185 L.Ed.2d 810 (2013). The test for when a conscious avoidance charge is permissible has two prongs. First, the defendant must “assert[] the lack of some specific aspect of knowledge required for conviction.” Id. (internal quotation marks omitted). Second, there must be an “appropriate factual predicate for the charge ..., i.e., the evidence is such that a rational juror may reach the conclusion beyond a reasonable doubt that the defendant was *145aware of a high probability of the fact in dispute and consciously avoided confirming that fact.” Id. (internal quotation marks omitted); accord United States v. Cuti, 720 F.3d 453, 463 (2d Cir.2013), petition for cert. filed, No. 13-1493 (U.S. Apr. 14, 2014); United States v. Svoboda, 347 F.3d 471, 480 (2d Cir.2003).

“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, 336 F.3d 167, 170 (2d Cir.2003).

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, 219 F.3d at 154 (internal quotation marks omitted). In this case, the district court gave the jury an instruction on actual knowledge, so the first requirement of the harmless error analysis was satisfied.

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.

*1461. Legal Standards

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, 93 F.3d 1075, 1080 (2d Cir.1996); see also United States v. Ojemen, 465 Fed.Appx. 69, 71 (2d Cir.2012) (summary order) (applying the standard of review in Lewis to the use of sophisticated means under Section 2B1.1). The government contends that we should review the application of this enhancement for clear error because the district court’s determination of the issue was primarily factual. See United States v. Gotti 459 F.3d 296, 349 (2d Cir.2006); United States v. Vasquez, 389 F.3d 65, 74-75 (2d Cir.2004).

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.1

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, 416 F.3d 163, 169 (2d Cir.2005) (applying the former Section 2F1.1 enhancement for sophisticated means).2 Here, Fofanah was involved in the use of fraudulent titles to ship the cars at issue from the United States to Guinea, and he was listed as the owner of one of the cars on a fraudulent dock receipt. He also recommended the practice of disabling a car security system, such as LoJack, before shipping cars to Africa, which is done to prevent law enforcement from recovering the vehicle. He showed that he had developed a sophisticated knowledge of the respective means of shipping stolen cars to different African countries, explaining to the undercover officer that it was preferable to ship to Guinea rather than Senegal because in Senegal one needs to present real titles.

The repetitive and coordinated nature of Fofanah’s conduct further reveal the sophistication of the means he employed. See United States v. Finck, 407 F.3d 908, 915 (8th Cir.2005). Fofanah’s offense conduct was repetitive, as it involved 17 stolen cars that were to be resold in Africa. *147Moreover, the scheme in which Fofanah participated involved coordination between Fofanah and Sahm to load vehicles into containers that were driven to a port where customs would have to be cleared. The fact that the scheme involved moving the cars across jurisdictions and then abroad is also some evidence of the scheme’s sophistication.

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, 125 F.3d 845, 1997 WL 609134, at *1 (2d Cir.1997) (unpublished) (in the context of an enhancement under Section 2B6.1(b)(2) for being in the business of receiving and selling stolen property in crimes related to the alteration or removal of vehicle identification numbers, we review “factual findings for clear error, and [the] determination that those findings support the challenged enhancement de novo ”). The government argues for a clear error standard of review, as discussed earlier.

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 *148country is in demanding “real” titles for cars that are shipped to those countries suggests that he is a repeat player. Gov’t’s Add. at 5. In addition, Fofanah was involved in the process of shipping 17 stolen cars in various containers over the course of about six weeks, which supports the district court’s conclusion that this was not a “one-shot deal.” Sentencing Tr. at 7.

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.