Blog

Corpus Delicti Rule: Can You Be Convicted For Murder Without A Body?

By Stephen N. Preziosi, September 19th, 2014

Criminal appeals lawyer, corpus delicti rule codified under cpl § 60.50

People v. Lipsky

57 N.Y.2d 560

New York Court of Appeals

Decided on: December 14, 1982

Corpus Delicti Rule Codified Under CPL § 60.50

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

Issue: Whether under the corpus deliciti rule a conviction for murder can be based solely upon evidence of a confession without direct proof of death where no body was found and other than the confession there was only circumstantial evidence calculated to suggest that the victim was dead and the Defendant was the culprit.

Summary: Defendant confessed to killing victim, Mary C. Robinson. At trial, the Judge found the confession completely voluntary and made in a knowing and reflective manner and the jury returned a verdict of guilty. After trial, Defense moved for a judgment notwithstanding the verdict on the ground that there was no evidence other than the Defendant’s confession and admission to establish either the victim’s death or any criminal act of Defendant in relation to her. The trial Judge agreed that there was no direct proof of death other than the confession and dismissed the indictment.

See Also: Criminal Impersonations: The Federal Standard Of Proof For Sufficiency

Holding: The Court of Appeals reversed and held that the circumstantial evidence was sufficient when considered in connection with the confession, which met the requirements of CPL § 60.50.

Under Penal Law § 60.50, a person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.

For purposes of statute proscribing conviction solely upon evidence of confession or admission without proof that the offense charged has been committed, it is not enough that additional proof partially corroborates the truthfulness of confession; the confession may, however, be used as a key or clue to the explanation of circumstances, which, when so explained, establish the criminal act.

Facts: Defendant confessed to killing victim, Mary C. Robinson at a hotel and dumped the body down a gully. Prior to trial, Defense moved to suppress Defendant’s confession; that motion was denied. The trial Judge found the confession completely voluntary and made in a knowing and reflective manner. The jury returned a verdict of guilty and Defense then moved for a judgment notwithstanding the verdict on the ground that there was no evidence other than the Defendant’s confession and admission to establish either Mary’s death or any criminal act of Defendant in relation to her. The trial Judge agreed that there was no direct proof other than the confession and dismissed the indictment.

The Appellate Division affirmed that CPL §60.50 section requiring direct proof in the absence of corpus delicti. The Court of Appeals reversed and held that the circumstantial evidence was sufficient when considered in connection with the confession, which met the requirements of CPL § 60.50. The Court of Appeals reversed the Appellate Division’s order and reinstated the verdict.

Legal Analysis: The Court of Appeals relied on two rules. The first is the common-law rule enunciated in Ruloff v. People, 18 N.Y. 179, 184, which held that a Defendant couldn’t be convicted of murder without direct proof of the death or of the violence or other act of the Defendant, which is alleged to have produced death. Although the rule has often been said to preclude conviction for murder unless the body has been found, the Court of Appeals held that that is an oversimplification.

Exceptions were recognized as where the murder had been on the high seas, at a great distance from the shore, and the body had been thrown away. The Ruloff rule was to be warranted by melancholy experience of the conviction and execution of supposed offenders, charged with the murder of persons who survived their alleged murders.

The Ruloff rule is so clearly out of harmony with the general rule that the corpus deliciti may be established by circumstantial evidence, the Court held that they have no hesitancy in overruling it.

The second rule is the confession-corroboration rule of Criminal Procedure Law § 60.50. That section proscribes conviction of any offense solely upon evidence of a confession or admission made by him without additional proof that the offenses charged had been committed. The purposes sought to be served by its provisions is to avert the danger that a crime may be confessed when in fact no such crime has been committed by anyone, People v. Reade, 13 N.Y.2d 42, 45, 241 N.Y.S.2d, 829, 191 N.E.2d 891.

The Court of Appeals held that these two rules shared a common background; the fear of convicting the innocent. The now-defunct Ruloff rule required no more than direct proof, and would have been satisfied by a Defendant’s confession or admission, either of which constitutes direct eyewitness testimony of the Defendant himself. What remains, then, when there is a confession or admission, is only CPL 60.50’s requirement of additional proof that the offense charged as been committed, that is to say, that there be some evidence apart from Defendant’s confession or admission, to establish that fact.

The Court of Appeals held that is it not enough that the additional proof partially corroborates the truthfulness of the confession, People v. Cuozzo, 292 N.Y. 85, 93, 54 N.E.2d 20. The confession may, however, be used as a key or clue to the explanation of circumstances, which, when so explained, establish the criminal act.

Under CPL § 60.50 no additional proof is needed to connect Defendant to the crime, People v. Murray, 40 N.Y.2d 327, 332, 386 N.Y.S.2d 691, 353 N.E.2d 605. Evidence in addition to the confession is, moreover, sufficient even though it fails to exclude every reasonable hypothesis save that of guilt. This statue is satisfied by the production of some proof, of whatever weight, that a crime was committed by someone People v. Daniels, 37 N.Y.2d 624, 629, 376 N.Y.S.2d 436, 339 N.E.2d 139 and conduct of Defendant indicating a consciousness of guilt, such as presence at the scene, proof of motive or flight, may be held to constitute the essential additional proof. In final analysis, the Court of Appeals held that the additional evidence of the crime together with the confession must be sufficient to establish Defendant’s guilt beyond a reasonable doubt, People v. Conroy, 287 N.Y. 201, 202, 38 N.E.2d 449.

The Court of Appeals held that the evidence in this case was sufficient to present a question to the jury, notwithstanding that the victim’s body has not been found and that, apart from Defendant’s confession and admissions, there was no direct proof of death or of criminal agency. The Court held that the question with respect to circumstantial evidence is whether common human experience would lead a reasonable man, putting his mind to it, to reject or accept the inferences asserted by the established facts.

The Court of Appeals held that the evidence, when read with the Defendant’s confession, sufficiently establishes the victim’s death, and the cause of it to take the issues to the jury. Accordingly, the Court of Appeals reversed the Appellate Division’s order and reinstated the verdict.

Criminal Impersonations: The Federal Standard Of Proof For Sufficiency

By Stephen N. Preziosi, September 18th, 2014

criminal appeals lawyer, test for sufficiency of evidence, criminal impersonation

U.S v. Tomsha-Miguel

2014 WL 4358466

United States Court of Appeals for the Ninth Circuit

Decided on: September 4, 2014

The Sufficiency Standard Requires That The Evidence Be Viewed In light Most Favorable To The Prosecution

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

Issue: Whether there was sufficient evidence to convict Defendant under 18 U.S.C.A. § 912 impersonating an officer or employee of the United States where Defendant crafted a fraudulent letter using the letterhead of a U.S. Congressmen and the letter was addressed to herself.

Summary: Defendant was a proprietor of a small tax services business. She prepared a letter responding to her client’s tax problems using the formal letterhead of a United States Representative. She addressed the letter to her self, signed the letter on behalf of a fictional congressional aide, and faxed the letter to the client. Her actions were discovered and she was ultimately charged, and convicted of impersonating an officer or employee of the United States in violation of 18 U.S.C § 912. On Appeal, the Defendant argues that there was insufficient evidence to convict her under § 912 because the Government did not show that she committed an act consistent with the assumed impersonation.

The Court of Appeals for the Ninth Circuit relied on other Circuits’ that generally agreed that § 912 requires only that the Government show any overt act consistent with the assumed character and that it was sufficient to show that Defendant falsely assumed and pretended and committed an act in keeping with that assumed character.

See Also: U.S Sentencing Guidelines: Fleeing From Police May Be A Violent Felony Under The Armed Career Criminal Act

Holding: The Court of Appeals for the Ninth Circuit held that there was sufficient evidence that Defendant pretended to be the Congressman when she addressed the letter to her self using his letterhead to commit the act of impersonation under 18 U.S.C.A. § 912.

In considering a challenge to the sufficiency of the evidence, the court is obliged to construe the evidence in the light most favorable to the Prosecution, and only then determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Section § 912 provides: whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or office thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value.

Facts: Defendant Tomsha-Miguel was a proprietor of a small tax services business. Defendant contacted Congressman Cardoza’s officer and requested that the Congressman contact the IRS on behalf of her client to resolve the dispute. Congressman Cardoza offered to assist, but asked that the client complete a privacy release form and faxed it to Defendant.

However, she did not return the release form to her client. Instead, she prepared a letter responding to her client’s tax problems addressed to her using the formal letterhead of a United States Representative. She then signed the letter on behalf of a fictional congressional aide, and faxed the letter to the client from her fax number. Her client contacted Congressman Cardoza’s officer seeking information concerning the letter. Defendant’s actions were discovered and she was ultimately charged, and convicted of impersonating an officer or employee of the United States in violation of 18 U.S.C § 912.

On Appeal, the Defendant argues that there was insufficient evidence to convict her under § 912 because the Government did not show that she committed an act consistent with the assumed impersonation. The Court of Appeals for the Ninth Circuit concluded that her actions constituted an effort to assume to act in the pretended character and amounted to the impersonation of a federal officer of employer.

Legal Analysis: The Court of Appeals for the Ninth Circuit held that in considering a challenge to the sufficiency of the evidence, the Court of Appeals are obliged to construe the evidence in the light most favorable to the Prosecution, and only then determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In this case, Defendant argues that even if the jury could find that her actions met the impersonations element under the first part of §912, the Government failed to present sufficient evidence to show that she “acted as such” as further required by the statue. The Court of Appeals for the Ninth Circuit held that they have not previously decided the precise issue presented by this case. However, the Court held that other Circuit Courts have generally agreed that § 912 requires only that the Government show any overt act consistent with the assumed character, United States v. Cohen, 631 F.2d 1223, 1224, 5th Cir.1980.

The Court of Appeals for the Ninth Circuit held that 18 U.S.C.A. § 912 two distinct offenses; the first where the Defendant assumes or pretends to be an officer or employee acting under the authority of the United States and acts as such, and the second where the Defendant in such pretended character demands or obtains any money, paper, document, or thing of value.

In this case, the Defendant was convicted of the first crime, which has two elements: the impersonation of an officer or employee and acting as such. The Defendant contends that the Government failed to provide these elements because the forged letter was prepared in care of her and a person cannot pretend to her self that she is a federal employee. The Court of Appeals held that impersonation occurs when any person assumes to act in the pretended character of a Government official.

 Here, Defendant crafted a fraudulent letter and addressed it to herself on behalf of William G. Darton, the fictional aide to Congressman, Dennis A. Cardoza; signed the letter on behalf of the fictional aide; and copied the official letterhead of Congressman Cardoza’s office into the letter.

The Court of Appeals for the Ninth Circuit held that the most general allegation of impersonation of a governmental official is sufficient and the jury reasonably concluded that her actions constituted an effort to assume to act in the pretended character and amounted to the impersonation of a federal officer of employer. The Court of Appeals affirmed.

U.S. Sentencing Guidelines: Fleeing From Police May Be A Violent Felony Under The Armed Career Criminal Act

By Stephen N. Preziosi, September 17th, 2014

manhattan 2

U.S v. Cisneros

United States Court of Appeals for the Ninth Circuit

2014 WL 4067214

Decided: August 19, 2014

Armed Career Criminal Act: Sentencing Enhancement Include Attempting To Flee A Police Officer

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

Issue: Whether Defendant’s prior convictions for fleeing or attempting to elude a police officer qualify as violent felonies under Armed Career Criminal Act (ACCA) residual clause.

Summary: Defendant pleaded guilty to being a felon in possession of a firearm. The Government sought to enhance Defendant’s sentence under the Armed Career Criminal Act (ACCA), based on six of Defendant’s prior convictions; three convictions for fleeing or attempting to elude a police officer, two counts for first degree burglary, and one conviction for conspiracy to deliver a controlled substance. The District Court held that all six convictions qualified as ACCA predicate offenses and sentenced Defendant to the mandatory minimum months in prison.

See Also: Batson Challenges At Jury Selection: Gender Neutrality Required

Defendant appealed to the Court of Appeals for the Ninth Circuit which affirmed the District Court’s sentence prescribed by ACCA, and concluded that the Defendants convictions for fleeing or attempting to elude police officers qualify as  violent felonies under ACCA’s residual clause.

Holding: The Court of Appeals for the Ninth Circuit held that Defendant’s three convictions for fleeing or attempting to elude police officers under Oregon Revised Statutes section 811.540(1) constitute violent felonies under ACCA’s residual clause.

Because section 811.540(1) contains alternative elements for fleeing from a police officer in a vehicle and fleeing on foot, the statue is divisible.

Facts: Defendant Cisneros pleaded guilty to being a felon in possession of a firearm. The Government sought to enhance Defendant’s sentence under the Armed Career Criminal Act (ACCA), based on six of Defendant’s prior convictions; three convictions for fleeing or attempting to elude a police officer, Or.Rev.Stat. § 811.540(1), two counts for first-degree burglary, § 164.225, and one conviction for conspiracy to deliver a controlled substance, §§161.450, 475.752.

 The District Court held that all six convictions qualified as ACCA predicate offenses and sentenced Defendant to the mandatory minimum of 180 months in prison. Defendant appealed to the Court of Appeals for the Ninth Circuit which affirmed the District Court’s sentence prescribed by ACCA, and concluded that the Defendants convictions for fleeing or attempting to elude police officers and first-degree burglary qualify as predicate offenses under ACCA’s residual clause.

Legal Analysis: The Court of Appeals for the Ninth Circuit reviewed de novo whether Defendant’s prior convictions qualify as predicate violent offenses under Armed Career Criminal Act (ACCA). United States v. Chandler, 743 F.3d 648, 650 9th Cir.2014.

The Armed Career Criminal Act prescribes a mandatory minimum sentence of fifteen years imprisonment for any felon who unlawfully possesses a firearm and who has three or more prior convictions for a violent felony, 18 U.S.C. § 924(2(A)(1))(1). Under ACCA’s residual clause, the definition of violent felony includes any crime punishable by more than one year’s imprisonment that involves conduct that presents a serious potential risk of physical injury to another.

The Court of Appeals for the Ninth Circuit held that Oregon’s first-degree burglary statue and Oregon’s fleeing or attempting to elude a police officer statue qualify as violent felonies under ACCA’s residual clause. After deciding United States v. Snyder, 643 F.3d 694, 699-700 9th Cir.2011(fleeing or attempting to elude a police officer); United States v. Mayer, 560 F.3d 948, 954 9th Cir.2009 (first-degree burglary), the Supreme Court clarified that, in deciding whether a conviction qualifies as a violent felony under ACCA, courts may not review documents relevant to the conviction when the crime of which the Defendant was convicted has a single, indivisible set of elements. Descamps v. United States U.S. 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 2013.

A person commits the crime of fleeing or attempting to elude a police officer if 1) the person is operating a motor vehicle; and 2) a police officer gives a visual or audible signal to bring the vehicle to a stop and either:  A) the person, while still in the vehicle, knowingly flees or attempts to elude a pursuing police officer; or B) the person gets out of the vehicle and knowingly flees or attempts to elude the police officer.

 Snyder held that violating this statutes prohibition on vehicular flight constitutes a violent felony under ACCA’s residual clause. The Court of Appeals for the Ninth Circuit held that they have little problem concluding that Oregon’s fleeing or attempting to elude a police officer statue is divisible. By separating flight in a vehicle and flight on foot, the statue lists multiple, alternative elements, which creates several different crimes. In fact, the statue separates itself into two different crimes, dictating flight in a vehicle constitutes a felony while flight on foot constitutes a misdemeanor.

The Oregon Revised Statues Section 811.540(1), which prohibits flight or eluding a police officer, is divisible as to flight on foot and flight in vehicle.

In this case, all three of Defendant’s indictments for fleeing or attempting to elude a police officer used identical language, Each indictment establishes that Defendant was convicted of vehicular flight pursuant to Oregon Revised Statues section 811.540(1)(b)(A).

Therefore, all three of Defendant’s convictions for fleeing or attempting to elude police officers qualify as violent felonies under ACCA’s residual clause and the District Court did not err in sentencing Defendant to the minimum sentence of fifteen years imprisonment prescribed by ACCA.

Batson Challenges At Jury Selection: Gender Neutrality Required

By Stephen N. Preziosi, September 16th, 2014

batson challenges, criminal appeals attorney, gender neutraility

U.S v. Bontzaolakes

United States Court of Appeals for the Second Circuit

536 Fed.Appx. 41 2013

Decided on: September 4, 2013

Discriminatory Practices During Jury Selection Are Subject To Challenges Under Batson v. Kentucky

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

Issue: Whether the District Court erred under the third step of Batson when it allowed the People’s use of a peremptory strike against five female members of the venire based on their gender.

Summary: Defendant appeals from the District Court’s judgment of conviction, following a jury trial, for two counts of international kidnapping, and one count of making false statements. During the jury selection, the Government employed five peremptory strikes to dismiss women from the jury pool. Defense raised a Batson challenge to the Government’s use of strikes arguing that it constituted intentional discrimination on the basis of sex.

The District Court directed the Government to provide explanations and stated that the Government’s reasons were sufficient and denied Defendant’s Batson challenge.

On Appeal, Defendant claims that the Government’s use of preemptory challenged against female members of the venire violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 1986, and its progeny that a Prosecutor’s use of certain preemptory challenges during jury selection is prohibited by the United States Constitution. The Court of Appeals for the Second Circuit remanded the case to the District Court for a reconstruction hearing to make fair determinations of the Prosecution’s intent.

See Also: 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

Holding: The Court of Appeals for the Second Circuit held that the District Court erred under the third step of Batson when it reasoned with the People’s explanations for having stricken each of the female jurors and held that it constituted intentional discrimination on the basis of sex.

In determining whether peremptory challenges have been used in a discriminatory manner. First, the moving party must establish a prima facie case of discrimination; the opposing party must then provide a neutral justification for the exercise of the challenge; and finally, the District Court must evaluate whether the moving party has satisfied his ultimate burden of establishing that the peremptory challenge was the result of purposeful discrimination.

Facts: Defendant Jacqueline Bontzolakes appeals from the District Court’s judgment of conviction, following a jury trial, for two counts of international kidnapping, and one count of making false statements. During the jury selection, the Government made five peremptory strikes to dismiss women from the jury pool. Defense counsel raised a timely Batson challenge to the Government’s use of its peremptory strikes, arguing that this pattern of strikes and the resulting jury pool constituted intentional discrimination on the basis of sex. The District Court directed the Government to provide explanations and simply stated that the Government’s reasons were sufficient and denied Defendant’s Batson challenge.

On Appeal, Defendant claims that the Government’s use of preemptory challenged against female members of the venire violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 1986, and its progeny that a Prosecutor’s use of certain preemptory challenges during jury selection is prohibited by the United States Constitution. The Court of Appeals for the Second Circuit remanded the case to the District Court to conduct a reconstruction hearing to reconstruct the Prosecutor’s state of mind at the time of jury selection, and thereby determine whether the proffered sex neutral explanations for the striking of the female jurors were pretextual.

Legal Analysis: The Court of Appeals for the Second Circuit relied on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.ED.2d 69 1986, and its progeny that a Prosecutor’s use of certain peremptory challenges during jury selection is prohibited by the United States Constitution. Although first announced in the context of race, the Court note that since Batson, the Supreme Court has extended this doctrine to gender discrimination.

Batson adopted a burden-shifting approach for determining whether peremptory challenges have been used in a discriminatory manner. First, the moving party must establish a prima facie case of discrimination; the opposing party must then provide a neutral justification for the exercise of the challenge; and finally, the District Court must evaluate whether the moving party has satisfied his ultimate burden of establishing that the peremptory challenge was the result of purposeful discrimination.

A Defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the Prosecutor’s exercise of peremptory challenges at the Defendant’s trial. The Defendant first must show that he is a member of a cognizable racial group, and that the Prosecutor has exercised peremptory challenges to remove from the venire members of the Defendant’s race.

The Defendant may also rely on the facts that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.

Finally, the Defendant must show that such facts and any other relevant circumstances raise an inference that the Prosecutor used peremptory challenges to exclude the venire men from the petit jury on account of their race.

Once the Defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation.

In this case, the Court of Appeals for the Second Circuit was persuaded that Defendant established a prima facie case of discrimination based on sex and the Government’s use of five peremptory strikes against women.

The District Court’s abrupt acceptances of the Government’s sex-neutral justifications left unclear whether the court actually preformed the determination required at the third step of Batson. To the extent that the District Court made any determinations at the third step of Batson—as opposed to merely accepting the Government’s statement of sex-neutral explanations at the second step of Batson—the District Court did not provide any basis for their determination.

The Court of Appeals for the Second Circuit held that in these circumstances, they would remand the case for the District Court to conduct a reconstruction hearing, that is, a hearing to reconstruct the Prosecutor’s state of mind at the time of jury selection, and thereby determine whether the proffered sex-neutral explanations for the striking of the female jurors was pretextual. However, if the District Court determines that the passage of time or other factors have unduly impaired their ability to make a fair determination of the Prosecutor’s intent, they shall enter an order that the Defendant is entitled to a new trial.

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

By Stephen N. Preziosi, September 15th, 2014

maaaaa111

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.