United States v. Lowe

689 F. App'x 26

• Court: Court of Appeals for the Second Circuit
• Decided: April 26, 2017
• Docket: 16-188-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

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’ 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^] 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, rath er than subjeet 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 proceedings.” United States v. Vilar, 729 F.3d 62, 70 (2d Cir. 2013) (quoting United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (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.