16-841-cr
United States of America v. Rose Amanor

                               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 22nd day of March, two thousand seventeen.

PRESENT:         JOSÉ A. CABRANES,
                 RICHARD C. WESLEY,
                              Circuit Judges.
                 WILLIAM K. SESSIONS III,
                              District Judge.*


UNITED STATES OF AMERICA,

                          Appellee,                            16-841-cr

                          v.

ROSE AMANOR,

                          Defendant-Appellant.



FOR APPELLEE:                                              MARK E. BINI (Susan Corkery on the brief),
                                                           Assistant United States Attorneys for
                                                           Robert L. Capers, United States Attorney
                                                           for the Eastern District of New York,
                                                           Brooklyn, NY.


    *
      Judge William K. Sessions III, of the United States District Court for the District of Vermont,
sitting by designation.

                                                  1
     FOR DEFENDANT-APPELLANT:                                    ALLEGRA GLASHAUSSER, Federal
                                                                 Defenders of New York, Inc., New York,
                                                                 NY.

 1        Appeal from the judgment of the United States District Court for the Eastern District of
 2   New York (Eric N. Vitaliano, Judge).
 3
 4        UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 5   ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
 6
 7           Defendant-Appellant Rose Amanor appeals the March 4, 2016 judgement of the district
 8   court, convicting her, following a three-day jury trial, of importation of heroin, in violation of 21
 9   U.S.C. §§ 952(a), 960(a)(1) and 960(b)(3), and possession of heroin with intent to distribute, in
10   violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). She was principally sentenced to concurrent
11   terms of 27 months imprisonment and was released from prison on January 30, 2017.
12           On appeal, Amanor argues that: (1) the district court erred in finding that there was legally
13   sufficient evidence to convict her; (2) the assertions by the prosecutor during summation and
14   rebuttal that Amanor was not a blind drug courier denied her due process; and (3) the jury
15   instructions were erroneous and prejudiced her. For the reasons set forth below, we find these
16   arguments to be without merit. We assume the parties’ familiarity with the underlying facts,
17   procedural history of the case, and issues on appeal.
18
19                                                     ***
20   A. Sufficiency of the Evidence
21           “We review de novo challenges to the sufficiency of the evidence underlying a criminal
22   conviction, but a defendant bears a heavy burden because we review evidence on a sufficiency
23   challenge in the light most favorable to the government and draw all inferences in favor of the
24   government.” United States v. Lee, 723 F.3d 134, 143 (2d Cir. 2013) (internal quotation marks,
25   citations, and brackets omitted). “We will uphold a judgment of conviction if any rational trier of fact
26   could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting
27   Jackson v. Virginia, 443 U.S. 307 (1979) (internal quotation marks and brackets omitted)).
28          We conclude that there was more than enough evidence for a rational juror to convict
29   Amanor, for the reasons primarily stated in the district court’s September 29, 2015 Memorandum
30   and Order. See SA 23-29. First, there is no dispute that Amanor possessed heroin in her carry-on
31   luggage or that heroin is a federally controlled substance. Second, the government offered multiple
32   witnesses in support of its arguments: Customs and Border Protection Officers Richard Strauss,
33   Peter Vranhas, and Brian O'Rourke, as well as Special Agents Daniel Suden, Barbara Geigel, and

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 1   Paul Salamon. Third, the defendant’s own testimony, which was at odds with her statements to
 2   investigating agents, failed to provide a plausible explanation of how the bag of fish lined with
 3   heroin was found in her carry-on language, unbeknownst to her. See United States v. Anderson, 747
 4   F.3d 51, 60 (2d Cir. 2014) (“Circumstantial evidence probative of [guilt] may include … [i]n context,
 5   acts that exhibit ‘a consciousness of guilt, such as false exculpatory statements,’ … tend[ing] to
 6   prove knowledge and intent.”). Based on the totality of the trial evidence, we conclude that the jury
 7   had sufficient basis to convict Amanor of importation and possession of heroin with the intent to
 8   distribute.
 9
10   B. Due Process Challenge
11            We also reject Amanor’s claim that the prosecutor’s remarks during summation and rebuttal
12   that she was not a blind drug courier denied her due process. A defendant asserting that a
13   prosecutor’s remarks warrant reversal faces “a heavy burden, because the misconduct alleged must
14   be so severe and significant as to result in the denial of [the defendant’s] right to a fair trial.” United
15   States v. Locascio, 6 F.3d 924, 945 (2d Cir. 1993). To be plain error, an error must “have affected the
16   outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993).
17           Here, Amanor failed to object to the government’s statements during trial and therefore
18   waived this argument on appeal. Even if the issue were not waived, however, the government’s
19   arguments conformed to the district court’s pretrial ruling. The government argued that it did not
20   make sense that this defendant could be a blind drug courier, because, among other things, the drugs
21   she was carrying were worth hundreds of thousands of dollars and a drug organization would not
22   entrust drugs of such value to an unknowing courier. See App’x 502-03. This argument was legally
23   permissible, not to mention a far cry from the “egregious misconduct” that would amount to a
24   denial of due process. See United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999). Accordingly, we
25   conclude that Amanor’s due process challenge is meritless.
26
27   C. Jury Instructions
28           Lastly, Amanor challenges the jury instructions given by the district court. We see no reason
29   why a conscious-avoidance charge was not called for. A conscious-avoidance charge is appropriate
30   where there is no dispute in the evidence that the defendant had possession of contraband, but she
31   denies knowledge of its illegal nature. See United States v. Ebbers, 458 F.3d 110, 124 (2d Cir. 2006);
32   United States v. Aina-Marshall, 336 F.3d 167, 171 (2d Cir. 2003) (“When a defendant charged with
33   knowingly possessing contraband items takes the stand and admits possession of the contraband but
34   denies having known of the nature of the items, a conscious avoidance charge is appropriate in all
35   but the highly unusual—perhaps non-existent case.”).
36          Here, it was well-established that Amanor carried the bag of heroin into the United States.
37   The primary question is whether she was an unknowing courier who had been set up by her son, or


                                                         3
 1   whether a rational juror could conclude beyond a reasonable doubt that she was aware of a high
 2   probability that she possessed heroin and consciously avoided confirming that fact. Following this
 3   Circuit’s precedent, the district court gave a standard conscious avoidance charge and the standard
 4   jury instruction on possession of a controlled substance. See 3 Leonard B. Sand et al., Modern Federal
 5   Jury Instructions 56-6 (2015). Accordingly, we conclude the charge was properly included in the jury
 6   instruction.
 7
 8                                            CONCLUSION
 9           We have considered all of Defendant’s arguments on appeal and found them to be without
10   merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
11
12
13                                                         FOR THE COURT:
14                                                         Catherine O’Hagan Wolfe, Clerk




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