     09-2002-cr
     United States v. Stinn

 1                                         UNITED STATES COURT OF APPEALS
 2                                            FOR THE SECOND CIRCUIT
 3
 4                                                  SUMMARY ORDER
 5
 6           Rulings by summary order do not have precedential effect. Citation to summary orders
 7   filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
 8   Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
 9   filed with this court, a party must cite either the Federal Appendix or an electronic database
10   (with the notation “summary order”). A party citing a summary order must serve a copy of it
11   on any party not represented by counsel.
12
13          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
14   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
15   on the twenty-sixth day of May, two thousand and ten.
16
17   PRESENT:
18
19             JOSÉ A. CABRANES,
20             ROBERT A. KATZMANN ,
21                                  Circuit Judges,
22            J. GARVAN MURTHA ,
23                                  District Judge.*
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25   UNITED STATES OF AMERICA ,
26
27                        Appellee,
28
29                        -v.-                                                                   No. 09-2002-cr
30
31   BRADLEY STINN ,
32
33                        Defendant-Appellant.
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35
36   FOR DEFENDANT-APPELLANT:                                                                    LAWRENCE S. ROBBINS (Mark T.
37                                                                                               Stancil, Jennifer S. Windom, on the
38                                                                                               brief) Robbins, Russell, Englert,
39                                                                                               Orseck, Untereiner & Sauber LLP,
40                                                                                               Washington, D.C.
41   FOR APPELLEE:                                                                               SCOTT B. KLUGMAN , Assistant


                 *
                 The Honorable J. Garvan Murtha, Senior Judge of the United States District Court for the
       District of Vermont, sitting by designation.
                                                      1
 1                                                                            United States Attorney (Susan
 2                                                                            Corkery, Assistant United States
 3                                                                            Attorney, of counsel, Benton J.
 4                                                                            Campbell, United States Attorney,
 5                                                                            on the brief) Office of the United
 6                                                                            States Attorney for the Eastern
 7                                                                            District of New York, Brooklyn,
 8                                                                            NY.
 9
10         Appeal from a May 4, 2009 judgment of the United States District Court for the Eastern District
11   of New York (Nina Gershon, Judge).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
14   DECREED that the judgment of the District Court be AFFIRMED.
15
16            Defendant-appellant Bradley Stinn (“defendant” or “Stinn”) was convicted after a jury trial of
17   conspiracy to commit mail, wire, and securities fraud, in violation of 18 U.S.C. § 1349, securities fraud,
18   in violation of 18 U.S.C. § 1348, and mail fraud, in violation of 18 U.S.C. § 1341. In addition to ordering
19   him to forfeit $1,019,000, the District Court imposed a sentence principally of 144 months’
20   imprisonment, three years of supervised release, and $4,393,575 in restitution. Defendant now appeals
21   his conviction, contending that (1) the District Court erred in giving the jury a conscious avoidance
22   instruction, and (2) the individual or cumulative effect of the District Court’s rulings during jury
23   deliberations coerced a guilty verdict. We assume the parties’ familiarity with the remaining facts,
24   procedural history, and issues on appeal.
25
26             Defendant first contends on appeal that the District Court erred in giving the jury a conscious
27   avoidance instruction. “Courts in this Circuit commonly give the jury a conscious avoidance instruction
28   ‘when a defendant claims to lack some specific aspect of knowledge necessary to conviction but where
29   the evidence may be construed as deliberate ignorance.’” United States v. Reyes, 302 F.3d 48, 55 (2d Cir.
30   2002) (quoting United States v. Gabriel, 125 F.3d 89, 98 (2d Cir. 1997)). Such an instruction is warranted
31   when (1) the defendant asserts a lack of some specific aspect of knowledge required for conviction, and
32   (2) the appropriate factual predicate exists. See United States v. Svoboda, 347 F.3d 471, 480 (2d Cir. 2003);
33   United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003). A conscious avoidance charge need not
34   be based on direct evidence but, rather, may be based on circumstantial evidence showing that the
35   “surrounding circumstances were such that reasonable persons could have concluded that the
36   circumstances alone should have apprised defendants of the unlawful nature of their conduct.” United
37   States v. Civelli, 883 F.2d 191, 195 (2d Cir. 1989) (internal quotation marks and citation omitted).
38
39            Stinn asserted at trial that he lacked some specific aspect of knowledge required for conviction,
40   so the only question remaining is whether the appropriate factual predicate exists warranting a conscious
41   avoidance charge. We have held that a factual predicate for giving a conscious avoidance instruction
42   exists if there is evidence from which rational jurors may conclude beyond a reasonable doubt that “the
43   defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that
44   fact.” United States v. Hopkins, 53 F.3d 533, 542 (2d Cir. 1995) (internal quotation marks and citation
45   omitted). Stinn primarily contends that the charge was inappropriate because the government asserted
46   that he orchestrated the fraud and therefore had actual knowledge—so, Stinn’s view, he could not
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 1   possibly have “avoided” knowing the facts in dispute. But we have held that a conscious avoidance
 2   instruction is proper even where the government’s primary theory is that defendant had actual
 3   knowledge. See, e.g., id. (“Such an instruction is not inappropriate merely because the government has
 4   primarily attempted to prove that the defendant had actual knowledge, while urging in the alternative
 5   that if the defendant lacked such knowledge it was only because he had studiously sought to avoid
 6   knowing what was plain.”).
 7
 8           Because Stinn’s knowledge was “plainly . . . in dispute” at trial, see id., we cannot conclude that
 9   the District Court erred in giving the conscious avoidance instruction. We determine here that a rational
10   juror could have concluded, based on the evidence of the circumstances surrounding the accounting
11   manipulations, that if Stinn did not have actual knowledge of the illegality, “it was only because he
12   deliberately avoided confirming his suspicion.” United States v. Carlo, 507 F.3d 799, 802-03 (2d Cir.
13   2007).
14
15          Moreover, even assuming arguendo that giving such an instruction was error, that error would be
16   harmless in the face of overwhelming testimony and documentary evidence supporting the jury’s
17   conclusion that Stinn was guilty of the charged crimes.
18
19           Defendant next argues that the individual or cumulative effect of the District Court’s rulings
20   during jury deliberations coerced a guilty verdict. Specifically, defendant challenges the court’s
21   supplemental instruction following the open-court dissent of Juror 10 during polling; the court’s
22   subsequent dismissal of Juror 10, based on the juror’s refusal to deliberate and her attempt to secur
23   outside advice on the meaning of concepts fundamental to the case; the court’s subsequent addition of
24   Alternate 1 to the jury with Stinn’s consent; and the cumulative effect of these rulings. Based on a
25   review of the record as a whole, we cannot say that the District Court committed error or “abused its
26   discretion” in making these rulings.
27
28            Stinn contends that the District Court’s supplemental charge to the jury regarding the refusal of
29   Juror 10 to deliberate was a coercive “Allen” charge. We disagree, because there was no “suggestion that
30   jurors in the minority should reconsider their position.” Spears v. Greiner, 459 F.3d 200, 204 n.4 (2d Cir.
31   2006) (citation omitted). Moreover, the defendant himself had suggested that the Court remind the jury
32   of their duty to deliberate after first learning of the refusal of Juror 10 to do so.
33
34           We likewise do not conclude that the District Court “abused its discretion” in removing Juror 10
35   pursuant to rule 23(b)(3) of the Federal Rules of Criminal Procedure, which provides that “[a]fter the
36   jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict . . . if the court
37   finds good cause to excuse a juror.” United States v. Simmons, 560 F.3d 98, 109 (2d Cir. 2009). After
38   questioning Juror 10 about her communication with a third party regarding the case, the district judge
39   reasonably concluded that Juror 10’s “extremely serious misconduct” warranted her dismissal. Gov’t
40   App. 225. there is no evidence that Juror 10 was removed due to her holdout status. See United States v.
41   Baker, 262 F.3d 124, 131 (2d Cir. 2001) (affirming the removal of a juror who “was not removed for her
42   nonconforming view of the evidence[,] [but] for her admitted refusal to perform her duty as a juror by
43   deliberating together with the other jurors”).
44
45           As far as the substitution of Alternate 1, it bears recalling that defendant did not object to either
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 1   action in the District Court. Accordingly, these contentions are subject only to plain error analysis. See,
 2   e.g., United States v. Delano, 55 F.3d 720, 726 (2d Cir. 1995). We cannot say that the District Court’s
 3   actions were plain error under current law, or that they affected the “substantial rights” of defendant.
 4   See, e.g., United States v. Bayless, 201 F.3d 116, 127-28 (2d Cir. 2000). First, Stinn does not dispute that
 5   Judge Gershon complied with Rule 24(c)(3) of the Federal Rules of Criminal Procedure in replacing
 6   Juror 10 and “instruct[ing] the jury to begin its deliberations anew.” Further, as Stinn concedes, the
 7   substitution of an alternate juror was certainly not more coercive than proceeding with the 11 jurors who
 8   had already voted to convict.
 9
10                                               CONCLUSION
11
12          We have considered each of defendant’s arguments on appeal and find them to be without merit.
13          For the reasons stated above, we AFFIRM the judgment of the District Court.
14

15                                                  FOR THE COURT,

16                                                  Catherine O’Hagan Wolfe, Clerk of Court

17

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