12-3850-cr
United States v. Lewis
                          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 9th day of October, two thousand thirteen.

PRESENT: GERARD E. LYNCH,
         DENNY CHIN,
         SUSAN L. CARNEY,
                       Circuit Judges.

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UNITED STATES OF AMERICA,

                                    Appellee,

                         v.                                             No. 12-3850-cr

JOYCE LEWIS, also known as “Joyce Lewis Daniels,”

                                    Defendant - Appellant,

PAULETTE M. GABBIDON, also known as “Paulette Hibbert,” “Paulette Webb,”
“Alliyah Adstroy,” “Alliyah Hibbert,” JASON LEWIS, JAMON LEWIS,

                                    Defendants.*

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          *
        The Clerk of Court is respectfully directed to amend the official caption in this case
to conform with the caption above.
FOR APPELLANT:               COLLEEN P. CASSIDY, Federal Defenders of New York,
                             Inc., Appeals Bureau, New York, New York.

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

       Appeal from the United States District Court for the Southern District of New York

(Kenneth M. Karas, Judge).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Joyce Lewis appeals from a December 12, 2012 judgment of the

district court convicting her of conspiracy to commit bank fraud in violation of 18 U.S.C. §§

1344, 1349, and sentencing her to imprisonment for a year and a day, three years of

supervised release, and a $300,000 fine. We assume the parties’ familiarity with the facts

and procedural history of this case, which we summarize only so far as is necessary to

understand our rulings.

       Lewis argues that the district court erred in instructing the jury that it could find Lewis

guilty of conspiracy if she “acted with a conscious purpose to avoid learning the truth” about

its criminal objective. Lewis offers three challenges to this instruction. First, she posits that

a recent Supreme Court decision, Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060

(2011), altered the standard for proving conscious avoidance and argues that the district court

should have used Global-Tech’s language rather than that enunciated in earlier Second

Circuit precedents. Second, Lewis claims that the district court confused two separate issues,


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the state of mind required for a defendant to join a conspiracy, and the knowledge necessary

for a defendant to have understood that conspiracy’s specific objectives. Third, Lewis argues

that the government did not establish a sufficient factual predicate to merit a conscious

avoidance instruction.

I.     Global-Tech’s Impact on Second Circuit Law

       Global-Tech did not unsettle circuit law. As we recently explained in United States

v. Goffer, 721 F.3d 113 (2d Cir. 2013), the decision in Global-Tech “synthesized conscious

avoidance holdings from [across] circuit[s]”; it “did not alter or clarify the doctrine, but

instead identified the common ground among the Courts of Appeals.” Id. at 128. Thus, in

Goffer, we held that the district court did not err by declining to give the jury a specific

warning that “reckless” behavior was insufficient to prove deliberate avoidance because

Second Circuit law had never required that instruction before. Id.

       Here, the same logic applies. The district court may not have used Global-Tech’s

phrasing in its instruction, but it was not required to do so. What is more, even if Global-

Tech had changed the state of the law, the district court’s instructions were consistent with

its holding. Lewis calls attention to Global-Tech’s insistence that a defendant must “take

deliberate actions to avoid learning [a] fact” to be guilty of conscious avoidance. 131 S. Ct.

at 2070. But the district court adopted the same standard, instructing that the defendant must

“deliberately decide[ ] not to confirm a key fact” and “act[ ] with a conscious purpose to

avoid learning the truth.” In both formulations, a jury must find that a defendant decided to

ignore an inconvenient truth, and then took steps to do so.

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II.    Standard for Proving Intention to Join a Conspiracy

       As we explained in United States v. Ferrarini, “[t]here are two aspects of knowledge

in a conspiracy: 1) knowing participation or membership in the scheme charged[,] and 2)

some knowledge of the unlawful aims and objectives of the scheme.” 219 F.3d 145, 154-55

(2d Cir. 2000) (internal citations omitted). Although “[c]onscious avoidance may not be

used to support a finding as to the former, . . . it may be used to support a finding with respect

to the latter.” Id. at 155.

       If the district court had conveyed to the jury that one could innocently join an

undertaking without knowing of its illegal character, and that conscious avoidance of later

indications of wrongful behavior was sufficient to make that person a member of a criminal

conspiracy, such an instruction would have been erroneous. But read as a whole, the court’s

instructions did not mislead the jury in this way. See Cupp v. Naughten, 414 U.S. 141, 146-

47 (1973) (holding that a specific jury instruction “must be viewed in the context of the

overall charge”). At the beginning of the charge on the conspiracy count, the district court

defined a conspiracy as an “unlawful combination or agreement between two or more persons

to violate the law.” (emphases added). It then reiterated this element several times,

explaining that there must be “a mutual understanding, either spoken or unspoken, between

two or more people to cooperate with each other to accomplish an unlawful act,” that the

agreement is one “to disobey or disregard the law,” and that “the alleged conspirators agreed

to work together in furtherance of the unlawful scheme.”




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       Subsequently, the district court alerted the jury to the very distinction Lewis relies on,

specifically noting that conscious avoidance “cannot be used as a substitute for a finding that

the defendant knowingly agreed to a joint undertaking,” and that the jury could find the

defendant guilty “if, and only if, you find that she knowingly and intentionally joined the

conspiracy charged in the indictment.” (emphasis added). The court then instructed that only

if the jury found beyond a reasonable doubt that Lewis had entered such an agreement, could

it then rely on a finding of conscious avoidance to decide whether she knew that the specific

“objective or goal” of that agreement “was to engage in bank fraud.”

       Taken together, the court’s clear instruction that conscious disregard cannot prove

intent to join a conspiracy, and its accurate charge that a conspiracy requires an intentional

agreement to do something unlawful, constituted a correct statement of the law.

III.   Factual Predicate for the Conscious Avoidance Instruction

       A conscious avoidance instruction may only be given if two factual predicates are

met. First, “the defendant [must] assert[ ] the lack of some specific aspect of knowledge

required for conviction.” Ferrarini, 219 F.3d at 154 (citation omitted). On the stand,

Lewis disclaimed any knowledge of her alleged co-conspirators’ schemes. Second, there

must be “evidence … that [allows] a rational juror [to] reach [the] conclusion beyond a

reasonable doubt . . . that [the defendant] was aware of a high probability [of the criminal

objective] and consciously avoided confirming th fact.” Id. (citation omitted). “Red

flags” about the legitimacy of a transaction “can be used to show both actual knowledge

and conscious avoidance.” United States v. Ferguson, 676 F.3d 260, 278 (2d Cir. 2011).


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       The district court properly found that there were sufficient “red flags” to raise the

possibility that Lewis consciously avoided confirming her co-conspirators’ fraudulent

aim. During cross-examination, Lewis admitted that she never read the papers she

submitted to obtain a mortgage for her home in New York, explaining that she “signed

the papers as they told me.” As she acknowledged, those papers were prepared by her son

and his girlfriend and contained false information about her income, marital status, and

previous employment. Lewis had reason to question the application’s veracity. Four

months earlier, her son Jason had asked her to co-sign an application for a home equity

loan on his house in New Jersey. According to her testimony, she later learned that the

loan was not what it seemed, that Jason had not listed her as a guarantor, but rather had

used her credentials to take out money in her name, not his. Rather than investigate

further, Lewis wrote several checks to cover the monthly payments for that loan. And

rather than carefully check the application prepared by Jason and his girlfriend for her

own home, Lewis admits that she signed the document in at least twenty-five places

without reading a word. Lewis does not argue that this evidence was insufficient to

permit a reasonable jury to find actual knowledge of the scheme; the same evidence

would equally permit a finding of conscious avoidance.

       Lewis argues that other purported “red flags” relied upon by the government only

signaled a mother’s innocent trust in her sons’ character. In particular, Lewis claims that

she had no reason to view large cash gifts from her sons as anything other than signs of

their gratitude for all she had done for them. But as explained above, even if the district

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court had credited that argument as a persuasive account of Lewis relationship with her

children, other aspects of her dealings with Jason should have given her pause.

      For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




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