United States v. Lowe , 689 F. App'x 26 ( 2017 )


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  •     16-188-cr
    United States v. Lowe
    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 ASUMMARY ORDER@). A PARTY CITING TO 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 26th day of April, two thousand seventeen.
    PRESENT:
    PETER W. HALL,
    CHRISTOPHER F. DRONEY,
    Circuit Judges,
    J. PAUL OETKEN,
    District Judge.*
    _____________________________________
    United States of America,
    Appellee,
    v.                                                             No. 16-188-cr
    Kevin Lowe, AKA Sealed Defendant 1,
    Defendant-Appellant,
    David Moody, AKA Sealed Defendant 2,
    Rashawn Whidbee, AKA Sealed Defendant 3,
    AKA Ra-Ra, Robert Williams, AKA Sealed
    Defendant 4, AKA Crusader Rob, Donald Carr,
    AKA Sealed Defendant 5, AKA Buster, George
    Barrow, AKA Sealed Defendant 6, AKA Coco,
    Bradley Mitchell, AKA Sealed Defendant 7,
    Elijah Pinckney, AKA Sealed Defendant 8,
    Evelyn White, AKA Sealed Defendant 9, Cedric
    White, AKA Sealed Defendant 10, AKA Sin,
    Sheila Carter, AKA Sealed Defendant 11, Ravelo
    * Judge J. Paul Oetken, United States District Court for the Southern District of New York, sitting by designation.
    Manzanillo, AKA Sealed Defendant 12, AKA
    Grande, Jonathan Huertas, AKA Sealed
    Defendant 13, Olga Mendoza Delarosa, AKA
    Sealed Defendant 14, Bryan Rivera, AKA Sealed
    Defendant 15, Samantha Livingston, AKA Sealed
    Defendant 16, Bridget Higgins, AKA Sealed
    Defendant 17, David Stewart, AKA Sealed
    Defendant 18, AKA Cash Money, AKA Pork
    Chop, Vokart Alsaidi, AKA Sealed Defendant 19,
    Darryl Brathwaite, AKA Sealed Defendant 21,
    Theodore Roosevelt Johnson, AKA Sealed
    Defendant 22, Waleed Alsaidi, AKA Sealed
    Defendant 23, Ronald Carr, AKA Sealed
    Defendant 24, Robert Terdiman, John Coleman,
    AKA John John, Kendrick Chandler, AKA
    Sealed Defendant 20,
    Defendants.
    _____________________________________
    FOR APPELLANT:                                      FLORIAN MIEDEL, Miedel & Mysliwiec LLP,
    New York, NY.
    FOR APPELLEES:                                      EDWARD B. DISKANT, Assistant United
    States Attorney (Tatiana R. Martins and
    Michael Ferrara, Assistant United States
    Attorneys, of counsel), for Preet Bharara,
    United States Attorney for the Southern
    District of New York, New York, NY.
    _____________________________________
    Appeal from a judgment of the United States District Court for the Southern District of New
    York (Schofield, J.).
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
    DECREED that the judgment of the district court is AFFIRMED.
    Defendant-Appellant Kevin Lowe appeals from a judgment of conviction of one count of
    conspiracy to distribute and possess with intent to distribute oxycodone. We assume the parties’
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    familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
    I. Jury Instruction
    The Appellant challenges the inclusion in the jury charge of an instruction regarding conscious
    avoidance. Not only did the Appellant fail to object to this instruction below; he in fact
    affirmatively sought the instruction in a joint request to charge. “The law is well established that if,
    as a tactical matter, a party raises no objection to a purported error, such inaction constitutes a true
    waiver which will negate even plain error review.” United States v. Quinones, 
    511 F.3d 289
    , 321
    (2d Cir. 2007) (internal quotation marks and citations omitted). “A finding of true waiver applies
    with even more force when, as in this case, [a defendant] not only failed to object to what [he] now
    describe[s] as error, but [he] actively solicited it[.]” 
    Id. The Appellant
    has waived any claim of
    error on appeal in the jury instruction he requested. See United States v. Polouizzi, 
    564 F.3d 142
    ,
    153 (2d Cir. 2009) (declining to consider the merits of a challenge on appeal to a jury instruction
    because the appellant had agreed in proceedings below that the challenged instruction was
    satisfactory).
    II. Jury Note
    The Appellant challenges the district court’s response to the jury’s note requesting clarification
    of the jury instructions on the elements of conspiracy and conscious avoidance. The Appellant
    acknowledges that he did not preserve this objection below. Accordingly, we review for plain
    error, requiring that the Appellant demonstrate that “(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 affects the fairness, integrity or public reputation of judicial
    3
    proceedings.” United States v. Vilar, 
    729 F.3d 62
    , 70 (2d Cir. 2013) (quoting United States v.
    Marcus, 
    560 U.S. 258
    , 262 (2010)) (internal quotation marks omitted).
    “[T]he legal sufficiency of [a] supplemental charge must be assessed in the context of the
    instructions as a whole.” United States v. Gengo, 
    808 F.2d 1
    , 4 (2d Cir. 1986) (quoting United
    States v. Velez, 
    652 F.2d 258
    , 261 (2d Cir. 1981) (internal quotation marks omitted). “We
    emphatically do not review a jury charge on the basis of excerpts taken out of context, but in its
    entirety, to determine whether considered as a whole, the instructions adequately communicated
    the essential ideas to the jury.” United States v. Sabhnani, 
    599 F.3d 215
    , 237 (2d Cir. 2010)
    (internal quotation marks and citations omitted).
    Bearing these principles in mind, we have closely examined the entirety of the district court’s
    statements in response to the jury note, and we have considered them in the context of the jury
    instructions as a whole. We identify no plain error. The principal thrust of the district court’s
    response to the jury note was to direct the jury back to the written instructions on the elements of
    conspiracy and conscious avoidance, which, as indeed the Appellant acknowledges, were a correct
    statement of the law. Under these circumstances, we see no “clear or obvious” error, nor do we see
    that any error “affected the appellant’s substantial rights” or “seriously affects the fairness,
    integrity, or public reputation of judicial proceedings.” 
    Vilar, 729 F.3d at 70
    .
    We have considered all of the Appellant’s arguments to the contrary and find them without
    merit. The judgment of the district court is AFFIRMED.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
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