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Conscious Avoidance Instruction To The Jury: The Trial Court May Instruct A Jury That Defendant Consciously Avoided Knowledge Of Criminal Activity Where The Evidence Demonstrates That There Was Actual Knowledge


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U.S v. Fofanah

United States Court of Appeals for the Second Circuit

2014 WL 4290391

Decided on: September 2, 2014

Conscious Avoidance Instruction Rendered Harmless Error By Actual Knowledge Of Criminal Activity

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer 

Issue: Whether the District Court erred when it instructed the jury that it could convict Defendant on the theory of conscious avoidance where the overwhelming evidence showed that the Defendant had actual knowledge that the vehicles at issue were stolen.

Summary: Defendant Abdulai Fofanah was convicted after a jury trial of conspiracy to transport stolen vehicles. At trial, the District Court instructed the jury that the law allows the jury to find that the Defendant had actual 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. The jury found Defendant guilty on all counts.

On Appeal, Fofanah challenged 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. The Court of Appeals for the Second Circuit concluded that any error in giving the contested jury instruction was harmless and affirmed because the evidence showed he had actual knowledge that the vehicles at issue were stolen.

See Also: Sixth Amendment Confrontation Rights Not Violated Where Defendant Procures A Witness’s Absence At Trial.

Holding: The Court of Appeals for the Second Circuit held that if the District Court erred in instructing the jury on conscious avoidance, any such error was harmless because the jury was instructed on actual knowledge and there was overwhelming evidence that Defendant possessed actual knowledge that the cars at issue were stolen.

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.

The test for when a conscious avoidance charge is permissible has two prongs: 1) the Defendant must assert the lack of some specific aspect of knowledge required for conviction.

2) there must be an appropriate factual predicate for the charge; 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 that fact.

Facts: Defendant Abdulah 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. 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 a theory of conscious avoidance. Defendant Fofanah’s offence conducted consisted of his leadership role in a scheme to ship high-priced stolen cars. Defendant hired Fousseni Traore Sahm, a trucker who at the time Defendant hired him, Sahm was working with the police. Fofanah and Sam met with another man, who was an undercover officer and Fafanah offered to sell him a car.

At the time of Defendant’s arrest, he had in his possession a shipping document that tied him to a container that he helped load with cars.

At trial, the District Court instructed the jury that the law allows the jury to find that the Defendant had actual 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. The jury found Defendant guilty on all counts.

On Appeal, Fofanah challenged 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. The Court of Appeals for the Second Circuit concluded that any error in giving the contested jury instruction was harmless, and affirmed.

Legal Analysis: The Court of Appeals for the Second Circuit held that if the District Court erred when it instructed the jury on conscious avoidance instruction in this case, any such error was harmless.

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.

The test for when a conscious avoidance charge is permissible has two prongs:

1) the Defendant must assert the lack of some specific aspect of knowledge required for conviction.

2) there must be an appropriate factual predicate for the charge; 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 that fact. The Court of Appeals for the Second Circuit held that the Defendant in this case did 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.

The Court of Appeals held that an 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. There must be an appropriate factual predicate for a conscious avoidance jury instruction, that is, the evidence must be 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 that fact.

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. In addition, there was overwhelming evidence that the Defendant had actual knowledge that the cars at issue were stolen. The Defendant told an undercover officer that the cars were “no good” which the officer understood to mean stolen. The Defendant was present in a meeting where the discussion of the fact that the titles for the cars being shipped did not match the actual cars. The Defendant also engaged in a discussion with the undercover officer about how to take out the security system on a car before it is shipped which is done to prevent law enforcement from locating the vehicle. Accordingly, the Court of Appeals for the Second Circuit affirmed and held that there was overwhelming evidence that the Defendant possessed actual knowledge that the cars at issue were stolen.

 


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