13-1305-cr
United States v. Siavosh Henareh

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
25th day of April, two thousand fourteen.

Present:
            RALPH K. WINTER,
            BARRINGTON D. PARKER
            PETER W. HALL,
                        Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                            No. 13-1305-cr

SIAVOSH HENAREH, AKA SEALED DEFENDANT 1, AKA
SIYAVESH HENAREH, AKA THE DOCTOR,

                         Defendant–Appellant,

BACHAR WEHBE, AKA SEALED DEFENDANT 2, AKA FAREZ,
CETIN AKSU, AKA SEALED DEFENDANT 3,

                  Defendants.
____________________________________________________

FOR APPELLANT:                     Melinda Sarafa, Sarafa Law LLC, New York, NY.

FOR APPELLEE:                      Benjamin Naftalis (Justin Anderson, on the brief), Assistant United
                                   States Attorneys, for Preet Bharara, United States Attorney for the
                                   Southern District of New York.
____________________________________________________

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Rakoff, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant–Appellant Siavosh Henareh appeals from a judgment of conviction following

a trial by jury in which Henareh was found guilty of one count of conspiracy to distribute heroin,

knowing or intending that the heroin would be imported into the United States, in violation of 21

U.S.C. § 963. The district court sentenced Henareh to 210 months’ imprisonment. Henerah

raises several challenges on appeal. He argues (1) that the government did not introduce

sufficient evidence to establish that he knew the conspiracy aimed to distribute heroin in the

United States; (2) that the district court erred when it included a conscious avoidance instruction

in the jury instructions; (3) that the district court abused its discretion when it limited the scope

of the defense’s cross-examination of a government witness; and (4) that his sentence of 210

months’ imprisonment was both procedurally and substantively unreasonable. We assume the

parties’ familiarity with the relevant facts, the procedural history, and the issues presented for

review, which we reference insofar as is necessary to explain our decision to affirm.

       The standard of review we employ when addressing challenges to the sufficiency of the

evidence is well established. See, e.g., United States v. Chavez, 549 F.3d 119, 124 (2d Cir.

2008). Generally speaking, we review de novo whether the evidence is sufficient to support a

conviction, United States v. Anderson, No. 11-5364, 2014 WL 814889, at *6 (2d Cir. Mar. 4,

2014), and will “uphold the conviction if any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt,” United States v. Aguilar, 585 F.3d 652, 656

(2d Cir. 2009) (internal quotation marks and emphasis omitted). “A defendant seeking to
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overturn a jury verdict on sufficiency grounds bears a heavy burden, as we exercise an

exceedingly deferential standard of review.” Anderson, 2014 WL 814889, at *6 (internal

quotation marks and citations omitted).

       Henareh argues that the evidence was insufficient to prove that he knew the intent of the

conspiracy was to distribute heroin within the United States, a key element of a prosecution

brought under 21 U.S.C. § 963. Our review of the proceedings below convinces us otherwise.

Specifically before the jury were transcripts of meetings between Henareh and confidential

sources on January 12, 2011, and February 8, 2011, in which those sources informed Henareh

that the drugs were intended for the United States. Furthermore, a former co-conspirator of

Henareh who later became a government witness testified that it was his own understanding that

the drugs were intended for the United States. This witness also testified to Henareh’s

involvement in the conspiracy, including Henareh’s request that this witness transport narcotics

for him. Cognizant of the deference we show “to the jury’s resolution of the weight of the

evidence and the credibility of the witnesses[,]” United States v. Persico, 645 F.3d 85, 104 (2d

Cir. 2011), we hold that the evidence, both direct and circumstantial, was sufficient to support

Henareh’s conviction under 21 U.S.C. § 963.

       Henareh next argues that the district court erred when it included a conscious avoidance

charge in its instructions to the jury. Ordinarily “[w]e 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). Because Henareh failed to

object to the charge when given in the district court, however, we review for plain error. See

United States v. Wolfson, 642 F.3d 293, 294 (2d Cir. 2011); see also United States v. Al Kassar,

660 F.3d 108, 126 (2d Cir. 2011) (“Because the defendants’ present objection was not made

before the district court, we review the instruction for plain error, reversing only where (1) the
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instruction was erroneous, (2) the error was plain (i.e., obvious), (3) the error prejudiced the

defendants’ substantial rights, and (4) that prejudice affected the fairness, integrity, or public

reputation of the judicial proceeding.”).

        “A conscious-avoidance charge is appropriate when (a) the element of knowledge is in

dispute, and (b) the evidence would permit a rational juror to conclude beyond a reasonable

doubt that the defendant was aware of a high probability of the fact in dispute and consciously

avoided confirming that fact.” United States v. Cuti, 720 F.3d 453, 463 (2d Cir. 2013) (internal

quotation marks omitted). In other cases we have explained that this charge is appropriate when

a defendant “assert[s] what amounts to ignorance of the specific objectives alleged[.]” United

States v. Lanza, 790 F.2d 1015, 1023 (2d Cir. 1986). In this regard, Henareh overlooks his own

testimony in which he denied being involved in any part of the conspiracy, including his express

denials that he knew the drugs at the heart of the conspiracy were intended for the United States.

Henareh’s trial counsel, moreover, admitted that the instruction was appropriate, given

Henareh’s unequivocal denials of involvement. Our review of the record confirms that this is the

very instance when a defendant’s “purported lack of knowledge defense, despite [his] deep

involvement in the transactions that effectuated [the crime], all but invite[s] the conscious

avoidance charge.” Cuti, 720 F.3d at 464. We find no error, plain or otherwise, in the district

court’s instruction to the jury.

        Turning to the district court’s ruling to limit cross examination, we are similarly

unpersuaded. “We review evidentiary rulings, including a trial court’s decision to limit the scope

of cross-examination, for abuse of discretion.” United States v. White, 692 F.3d 235, 244 (2d

Cir. 2012), as amended (Sept. 28, 2012). We will find such abuse when “the trial judge’s

evidentiary rulings were arbitrary and irrational.” Id. A trial judge retains the authority to

“impose reasonable limits on such cross-examination based on concerns about, among other
                                                  4
things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

       In this case, Henareh sought to cross-examine Ayyaz Baluch regarding his detention and

imprisonment at the hands of the Pakistani military in an unrelated matter during the late 1990s.

The district court denied Henareh’s request, explaining that its review had convinced it that

Baluch had not made any false or misleading statement because the arrest and conviction did not

correspond to a standard law enforcement arrest consistent with considerations of a law

enforcement officer’s jurisdiction. The district court also noted that the government was calling

Baluch to testify about the general practices in international heroin trafficking but not about the

particulars of the case against Henareh, since Baluch had no involvement with the investigation.

Given the marginal value, if any, of the proposed line of cross-examination, particularly

considering the de minimis value Baluch’s testimony provided about Henareh, the district court

did not abuse its discretion when it limited cross-examination into Baluch’s past consistent with

Federal Rule of Evidence 609(b).

       Finally, we are not persuaded that the district court committed any error, procedural or

substantive, in sentencing Henareh to a term of 210 months’ imprisonment. In addressing

procedural challenges to a district court’s sentence, we have recognized that we do “not require

robotic incantations” by the district court as to each of the individual 18 U.S.C. § 3553(a) factors.

United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc). Indeed, we have

“refrain[ed] from imposing any rigorous requirement of specific articulation by the sentencing

judge.” United States v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005). The district court, in the

circumstances challenged today, openly acknowledged the role § 3553(a) factors play in

sentencing while also citing to several specific circumstances that warranted Henareh’s below-

Guidelines sentence. The record refutes Henareh’s contention that the district court failed to
                                                  5
consider the § 3553(a) factors. Likewise, we can find no error in the below-Guidelines sentence

the district court imposed. In reviewing a challenge to the substantive reasonableness of a

sentence “‘we take into account the totality of the circumstances, giving due deference to the

sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of

district courts.’” United States v. Perez-Frias, 636 F.3d 39, 42 (2d Cir. 2011) (per curiam)

(quoting United States v. Cavera, 550 F.3d at 190). Furthermore, in the context of a below-

Guidelines sentence, see Perez-Frias, 636 F.3d at 43, we are disinclined to find such a sentence

unreasonable. So it is the case here, when the district court explained the rationale behind the

sentence of 210 months’ imprisonment versus the recommended sentence under the Guidelines

of 292 to 365 months’ imprisonment. The sentence imposed by the district court is, thus, neither

procedurally nor substantively unreasonable.

       We have considered all of Henareh’s remaining arguments and find them to be without

merit. We, therefore, AFFIRM the March 25, 2013 judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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