     16-4159
     U.S. v. Georgescu

                                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.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   27th day of October, two thousand seventeen.
 4
 5   Present:        JOHN M. WALKER, JR.,
 6                   ROSEMARY S. POOLER,
 7                             Circuit Judges.
 8                   GEOFFREY W. CRAWFORD,1
 9                             District Judge.
10
11   _____________________________________________________
12
13   UNITED STATES OF AMERICA,
14
15                                 Appellees,
16
17                         v.                                                   16-4159-cr
18
19   VIRGIL FLAVIU GEORGESCU,
20
21                           Defendant-Appellant.
22   _____________________________________________________
23
24   Appearing for Appellant:      Steven M. Witzel, Fried, Frank, Harris, Shriver, & Jacobson LLP
25                                 (Jennifer L. Colyer, Michael P. Sternheim, on the brief), New
26                                 York, NY
27


     1
      Judge Geoffrey W. Crawford, United States District Court for the District of Vermont, sitting
     by designation.



                                                     1
 1   Appearing for Appellee:       Andrea L. Surratt, Assistant United States Attorney, for Joon H.
 2                                 Kim, Acting United States Attorney for the Southern District of
 3                                 New York (Ilan Graff, Karl Metzner, Assistant United States
 4                                 Attorneys, on the brief), New York, NY.
 5
 6   Appeal from the United States District Court for the Southern District of New York (Abrams, J.).
 7
 8        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 9   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
10
11           Appellant Virgil Flaviu Georgescu appeals from the December 6, 2016 judgment of the
12   United States District Court for the Southern District of New York (Abrams, J.), finding him
13   guilty of conspiracy to kill officers and employees of the United States, in violation of 18 U.S.C.
14   §§ 1117, 3238 and conspiracy to provide material support or resources to a foreign terrorist
15   organization, in violation of 18 U.S.C. §§ 2339B(a)(1), 2339B(d)(1)(C), 2339B(d)(1)(D),
16   2339B(d)(1)(E), 3238. Specifically, Georgescu challenges the jury instructions regarding
17   negation of intent and the entrapment by estoppel defense. We assume the parties’ familiarity
18   with the underlying facts, procedural history, and specification of issues for review.
19
20           “To secure reversal based on a flawed jury instruction, a defendant must demonstrate
21   both error and ensuing prejudice.” U.S. v. Quinones, 511 F.3d 289, 313 (2d Cir. 2007) (citation
22   omitted). We review jury instructions de novo to determine whether they were erroneous. Id. at
23   314; see also U.S. v. Coppola, 671 F.3d 220, 247 (2d Cir. 2012). An erroneous jury charge is
24   prejudicial when it “misleads the jury as to the correct legal standard or does not adequately
25   inform the jury on the law.” Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994); see also
26   Quinones, 511 F.3d at 314.
27
28           A criminal defendant prevails on an entrapment by estoppel defense if he can show that
29   “the government, by its own actions, induced him to do [criminal conduct] and led him to rely
30   reasonably on his belief that his actions would be lawful by reason of the government’s seeming
31   authorization.” U.S. v. Giffen, 473 F.3d 30, 41 (2d Cir. 2006) (emphasis in original). The district
32   court instructed the jury of the availability of this defense to Georgescu.
33
34           Georgescu’s sole contention with respect to this aspect of the jury instructions is that it
35   improperly focuses on whether “a government official made affirmative statements” and engaged
36   in “affirmative conduct” that led Georgescu to believe he was authorized to act as he did. He
37   argues the balance of our prior decisions indicates that providing evidence of affirmative
38   statements or conduct by a government agent is not required in this context.
39
40          These arguments are unconvincing. We have never wavered from the proposition that
41   defendants asserting entrapment by estoppel must show that their belief that they were
42   authorized to commit the conduct in question is rooted in actual words or deeds by an actual
43   agent of the government. See Giffen, 473 F.3d at 41 (“when the government, by its own actions,
44   induced him to do those acts…”) (emphasis added); U.S. v. Abcasis, 45 F.3d 39, 43 (2d Cir.
45   1995) (“If a drug enforcement agent solicits a defendant…or effectively communicates an
46   assurance…”) (emphasis added); U.S. v. Gil, 297 F.3d 93, 107 (2d Cir. 2002) (“[t]his defense



                                                      2
 1   arises where a government agent authorizes a defendant…”) (emphasis added).1 There are
 2   various ways to express this requirement. In U.S. v. Miles, our most recent opinion on the
 3   subject, we did so by saying that “a defendant must show an affirmative assurance from the
 4   government that his conduct was legal.” 748 F.3d 485, 489 (2d Cir. 2014) (emphasis added).
 5   And in Abcasis, our first opinion on the subject, we approvingly discussed our sister circuit’s
 6   formulation that entrapment by estoppel “is warranted where a government agent affirmatively
 7   misleads a defendant as to the lawfulness of his conduct.” 45 F.3d at 43 (emphasis added).
 8
 9           It may be the case that in some circumstances the word “affirmative” would mislead a
10   jury into focusing on the government agent’s intentions rather than the defendant’s reasonable
11   interpretation of that agent’s actions. Certainly including “affirmative” is not required in jury
12   instructions for entrapment by estoppel. As we have frequently held, the meaning of jury
13   instructions is to be taken as a whole, not through word-by-word parsing. See, e.g., U.S. v.
14   Mulder, 273 F.3d 91, 105 (2d Cir. 2001) (citation omitted); Victor v. Nebraska, 511 U.S. 1, 16
15   (1994). Here, the District Court’s jury instructions unambiguously point jurors to the
16   Georgescu’s interpretation of a government agent’s actions, not to the actual intent behind those
17   actions.
18
19           We find Georgescu’s argument that he should have been entitled to a separate jury
20   instruction on negation of intent equally unavailing. Negation of intent “is not an affirmative
21   defense, but rather an attempt to rebut the government’s proof of the intent element of a crime by
22   showing that the defendant had a good-faith belief that he was acting with government
23   authorization.” Giffen, 473 F.3d at 43. We have so far declined to require any district court to
24   provide a jury instruction based on this doctrine due to our worry that it might “swallow the
25   actual public authority and entrapment-by-estoppel defenses.” Id. Assuming we were to
26   recognize negation of intent, whether a jury instruction on it would be appropriate would
27   “depend on the precise elements of a crime,” specifically the “nature of the intent element.” Id. at
28   45. In other words, we would only apply it to those crimes where proof that a defendant knew
29   they were violating the law is required to establish the mens rea.
30
31           Generally knowledge of the law is assumed, but the Supreme Court has recognized some
32   crimes based on violations of technical requirements in which it must be affirmatively shown by
33   the prosecution to establish mens rea. See, e.g. Liparota v. U.S., 471 U.S. 419 (1985) (finding a
34   law that prohibited misappropriation of food stamps “knowingly…in any manner not authorized
35   by [the statute] or the regulations” required defendant to know the use violated the regulations);
36   Cheek v. U.S., 498 U.S. 192 (1991) (prosecution for “willful” violations of tax laws requires
37   proving intent to violate those highly technical laws, not just inadvertent or mistaken mis-
38   filings); Ratzlaf v. U.S., 510 U.S. 135 (1994) (prosecution for a “willful” violation of complex
39   bank regulation requires proving intent to structure transactions intending to violate those laws);
40   Bryan v. U.S., 524 U.S. 184 (1998) (prosecution for a “willful” violation of gun seller licensing
41   requirements requires proving intent to avoid the statutory requirements). Only in such a
42   circumstance would providing evidence that defendants believed that they had been told by a
43   government official that their actions did not amount to a violation of the law be probative of
     1
      Other opinions Georgescu cites quote one or more of the formulation of these three. U.S. v.
     Mergen, 764 F.3d 199, 205 (2d Cir. 2014) (quoting Giffen); U.S. v. Williams, 526 F. App’x 29,
     32 (2d Cir. 2013) (summary order) (quoting Gil and Abcasis).


                                                      3
 1   mens rea. Where knowledge of legality is not an element of the offense, mens rea only relates to
 2   the behavior itself (and not to whether that behavior was illegal). In that circumstance,
 3   defendants’ claim that they were authorized to act as they did can only be asserted as a defense.
 4
 5           The offenses of which Georgescu was convicted below do not include intent to violate
 6   the law as part of their mens rea; they require only intent to carry out the goals of the conspiracy.
 7   Indeed, Georgescu knew what he and his co-conspirators were doing was illegal. That is why he
 8   originally offered to act as an informant. Whether he believed he was nevertheless authorized to
 9   do so is probative of whether he was entitled to a defense to having done so, not whether he had
10   the requisite mens rea to be found guilty of conspiracy. See Aparicio v. Artuz, 269 F.3d 78, 98
11   (2d Cir. 2001) (“Affirmative defenses…negate criminal liability for an offense, notwithstanding
12   that the State has otherwise proven all the elements of that offense beyond a reasonable doubt.”).
13   He was allowed to present such a defense—entrapment by estoppel.
14
15           We have considered the remainder of Georgescu’s arguments and find them to be without
16   merit. Accordingly, the order of the district court hereby is AFFIRMED.
17
18
19                                                         FOR THE COURT:
20                                                         Catherine O’Hagan Wolfe, Clerk
21
22




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