17-1594
United States v. Dambelly


                                 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 15th day of March, two thousand eighteen.

PRESENT:            JOSÉ A. CABRANES,
                    REENA RAGGI,
                                 Circuit Judges,
                    LAWRENCE J. VILARDO,
                                 District Judge.*



UNITED STATES OF AMERICA,

                            Appellee,                       17-1594

                            v.

SARJO DAMBELLY,

                            Defendant-Appellant,



     *
    Judge Lawrence J. Vilardo, of the United States District Court for the Western District of New
York, sitting by designation.

                                                    1
LAMIN SAHO,

                        Defendant.†



FOR APPELLEE:                                              Michael D. Neff, Matthew Laroche, and
                                                           Daniel B. Tehrani, Assistant United States
                                                           Attorneys, for Geoffrey Berman, United
                                                           States Attorney for the Southern District
                                                           of New York, New York, NY.

FOR DEFENDANT-APPELLANT:                                   Edward S. Zas, Appeals Bureau, Federal
                                                           Defenders of New York, Inc., New York,
                                                           NY.

        Appeal from a May 11, 2017 judgment of the United States District Court for the Southern
District of New York (Jesse M. Furman, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the May 11, 2017 judgment of the District Court be, and it
hereby is, AFFIRMED.

        Defendant-Appellant Sarjo Dambelly (“Dambelly”) appeals the District Court’s judgment
entered May 11, 2017. The judgment convicted him after a jury trial of one count each of conspiracy
to export, transport, and possess stolen motor vehicles in violation of 18 U.S.C. § 371; exportation
of or attempt to export stolen vehicles in violation of 18 U.S.C. §§ 2, 553(a)(1); transportation of
stolen vehicles in violation of 18 U.S.C. §§ 2, 2312; and possession of stolen vehicles in violation of
18 U.S.C. §§ 2, 2313(a). The judgment also sentenced him principally to a year and a day’s
imprisonment on each count, the terms to run concurrently. We assume the parties’ familiarity with
the underlying facts and the procedural history of the case. We discuss in turn below the two issues
that Dambelly raises on appeal.

   1. Evidentiary Basis for the Conscious-Avoidance Instruction

         Dambelly argues that the District Court erred by giving a conscious-avoidance instruction to
the jury because “[t]here was no evidence” that he had taken “deliberate actions or made active
efforts to shield himself from knowledge” of criminal activity. Br. Def.-Appellant 14.



   †
       The Clerk is directed to amend the caption to read as shown above.

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        (a) Law

         “We review challenged jury instructions de novo but will reverse only if all of the instructions,
taken as a whole, caused a defendant prejudice. . . . A jury instruction is erroneous if it misleads the
jury as to the correct legal standard or does not adequately inform the jury on the law.” United States
v. Applins, 637 F.3d 59, 72 (2d Cir. 2011) (internal quotation marks and citations omitted).

         “A conscious avoidance instruction may only be given if (1) the defendant asserts the lack
of some specific aspect of knowledge required for conviction . . . and (2) the appropriate factual
predicate for the charge exists, i.e., 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 second prong of this test
thus has two components[:] there must be evidence that the defendant (1) was aware of a high
probability of the disputed fact and (2) deliberately avoided confirming that fact. Of course, the
same evidence that will raise an inference that the defendant had actual knowledge of the illegal
conduct ordinarily will also raise the inference that the defendant was subjectively aware of a high
probability of the existence of illegal conduct. Moreover, the second prong may be established
where[ a] defendant’s involvement in the criminal offense may have been so overwhelmingly suspicious
that the defendant’s failure to question the suspicious circumstances establishes the defendant’s
purposeful contrivance to avoid guilty knowledge.” United States v. Svoboda, 347 F.3d 471, 480 (2d
Cir. 2003) (second, third, fourth, fifth, sixth, eighth alterations in original) (emphasis in original)
(internal quotation marks and citations omitted).

        (b) Analysis

        The absence of evidence that Dambelly actively did something to avoid knowledge does not
make the District Court’s conscious-avoidance instruction erroneous. No such evidence was
required. A conscious-avoidance instruction may be given even when the defendant has taken no
active measures to avoid learning of criminal activity. See, e.g., id. at 480–81 (finding a sufficient
evidentiary basis for a conscious-avoidance instruction in facts that do not include any active
measures taken by the defendant); see also United States v. Fofanah, 765 F.3d 141, 150 (2d Cir. 2014)
(Leval, J., concurring) (“A finding that a defendant’s ignorance of incriminating facts was a
conscious choice on the defendant’s part in no way requires a finding that the defendant took
affirmative steps to avoid gaining the knowledge.”).1


    1
     Dambelly cites the decision in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011), in
support of his argument that there must be evidence of active measures to avoid knowledge. But we
have already stated that Global-Tech simply summarizes existing case law. United States v. Goffer, 721
F.3d 113, 128 (2d Cir. 2013). Global-Tech did not abrogate our existing precedents on the conscious-
avoidance instruction.

                                                    3
    2. Language of the Conscious-Avoidance Instruction

        Dambelly also argues that, even if it was proper to give a conscious-avoidance instruction,
the District Court erred when giving the instruction to the jury on three counts: the counts of
exportation of or attempt to export stolen vehicles in violation of 18 U.S.C. §§ 2, 553(a)(1);
transportation of stolen vehicles in violation of 18 U.S.C. §§ 2, 2312; and possession of stolen
vehicles in violation of 18 U.S.C. §§ 2, 2313(a). The District Court erred, according to Dambelly,
because it “failed to make clear” to the jury “that the theory of conscious avoidance could not be
applied to the aiding-and-abetting or attempt charges” on those counts. Br. Def.-Appellant 20. To
convict someone of aiding and abetting or attempt of an offense, “proof of specific intent, not mere
knowledge,” is required, he asserts. Id. By contrast, a conscious-avoidance instruction permits a jury
only to infer knowledge, not intent, from the defendant’s avoidance.

        (a) Law

         We review the correctness of jury instructions de novo. Applins, 637 F.3d at 72. “In reviewing
a jury instruction, we examine not only the specific language that the defendant challenges but also
the instructions as a whole to see [whether] the entire charge delivered a correct interpretation of the
law.” United States v. Al Kassar, 660 F.3d 108, 127 (2d Cir. 2011) (internal quotation marks omitted).

         Dambelly concedes, however, that he did not raise this issue in the District Court. We
therefore review the District Court’s instructions on this issue for plain error. See, e.g., United States v.
Middlemiss, 217 F.3d 112, 121 (2d Cir. 2000). Plain error exists when “(1) there is an error; (2) the
error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the
appellant’s substantial rights, which in the ordinary case means it affected the outcome of the district
court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (alteration in original) (internal
quotation marks omitted).

        As Dambelly points out, one of the prerequisites for a conscious-avoidance instruction is
that “the defendant [have] assert[ed] the lack of some specific aspect of knowledge required for
conviction.” Svoboda, 347 F.3d at 480. A conscious-avoidance instruction permits the jury to draw an
inference of knowledge, not an inference of specific intent. See United States v. Samaria, 239 F.3d 228,
239–40 (2001), abrogated on other grounds, United States v. Huezo, 546 F.3d 174 (2d Cir. 2008). To
convict a defendant of aiding and abetting, a jury must find that the defendant had the specific
intent to commit the underlying substantive offense; mere knowledge is not enough. United States v.
Frampton, 382 F.3d 213, 223 (2d Cir. 2004). Conviction on a charge of attempt requires proof of
intent unless it is clear from the language of the statute that only knowledge, not intent, is required.
See United States v. Kwong, 14 F.3d 189, 194 (2d Cir. 1994) (citing Braxton v. United States, 500 U.S. 344,
351 n. (1991)).


                                                      4
        (b) Analysis

         We conclude that the District Court’s instruction was not erroneous, much less plainly
erroneous. Reading the jury instructions as a whole, we note that the District Court correctly
described the elements of both aiding and abetting and attempt. See Special App. Def.-Appellant 40,
44, 51–53. The District Court specifically instructed the jury that aiding and abetting required proof
that the defendant had acted “willfully,” and it explained that willfulness requires “an intention to do
something that the law forbids”—i.e., specific intent. Id. at 51. It also correctly instructed the jury
that attempt requires a finding “that the defendant intended to commit the crime charged.” Id. at 44.
And the District Court explicitly told the jury that “[c]onscious avoidance may apply only to the
defendant’s knowledge”—and therefore not intent. Id. at 53–54.

                                          CONCLUSION

       We have reviewed all of the arguments raised by Dambelly on appeal and find them to be
without merit. We therefore AFFIRM the May 11, 2017 judgment of the District Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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