UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the United States

C o u r t h o u s e , Foley Square, in the City of New York, on the

5 t h day of June, two thousand and six.

P R E S E N T : H O N . JOSEPH M. McLAUGHLIN,

H O N . DENNIS JACOBS,

H O N . BARRINGTON D. PARKER,

C i r c u i t Judges,

X

U N I T E D STATES OF AMERICA,

Appellee,

-v.- N o . 05-3306-cr

E D W I N FERNANDEZ,

Defendant-Appellant.

X

A P P E A R I N G FOR APPELLANT: B A R R Y F. SCHULMAN, Brooklyn,

N Y , for Defendant-Appellant.

APPEARING FOR APPELLEE: J O N A T H A N R. STREETER, Assistant U n i t e d States Attorney (Michael J . Garcia, United States A t t o r n e y for the Southern D i s t r i c t of New York, of c o u n s e l , Kevin R. Puvalowski, o n the brief), for Appellee.

A p p e a l from a judgment of the United States D i s t r i c t Court for the Southern District of New York ( P a t t e r s o n , J.), entered June 10, 2005, convicting d e f e n d a n t of five counts of money laundering.

U P O N DUE CONSIDERATION, it is ORDERED, ADJUDGED, A N D DECREED that the judgment of the district court is AFFIRMED.

E d w i n Fernandez appeals his conviction on five c o u n t s of money laundering in violation of 18U.S.C. § 1 9 5 6 ( 3 ) . We assume familiarity with the facts, the p r o c e d u r a l history, and the issues on appeal.

1 . Fernandez argues that the district court erred by c h a r g i n g the jury on "conscious avoidance". "We review a claim of error in the jury instructions de novo, r e v e r s i n g only where, viewing the charge as a whole, t h e r e was a prejudicial error." United States v. A i n a - M a r s h a l l , 336 F.3d 167, 170 (2d Cir. 2003). The d i s t r i c t court did not err if "the evidence presented p e r m i t t e d a rational juror to conclude beyond a r e a s o n a b l e doubt that [Fernandez] was aware of a high p r o b a b i l i t y " that the money used to buy gold from him w a s derived from proceeds of illegal narcotics t r a f f i c k i n g , and that Fernandez "consciously avoided c o n f i r m i n g that fact." See United States v. Jacobs, 1 1 7 F.3d 82, 98 (2d Cir. 1997) (internal quotation m a r k s omitted). In this regard, "[Fernandez's] claim i s little more than a challenge to the sufficiency of t h e evidence to support a conscious avoidance c o n v i c t i o n . " Aina-Marshall, 336 F.3d at 171.

There was sufficient evidence to support a conscious avoidance charge. Based on the following evidence, a rational juror could conclude that Fernandez was aware of a high probability that the purchase money flowed from narcotics trafficking: (1) F e r n a n d e z ' s insistence on using code words; (2) F e r n a n d e z ' s demand that all conversations be conducted i n private; (3) Fernandez's ready appreciation of his c u s t o m e r ' s desire to have gold "painted" even though t h e r e is no reason to paint gold in legitimate t r a n s a c t i o n s ; and (4) the above-market premiums e x t r a c t e d by Fernandez in his sales to the government i n f o r m a n t . Likewise, sufficient evidence--such as F e r n a n d e z ' s insistence on using code and his a f f i r m a t i v e rejection of information about the source o f the funds--supports an inference that Fernandez d e l i b e r a t e l y avoided confirming the source of the f u n d s . The factual predicates for use of the conscious a v o i d a n c e charge were therefore satisfied, and the d i s t r i c t court did not err in imposing the charge.

2 . "We review the district court's decision to admit o r exclude expert testimony for an abuse of d i s c r e t i o n . " United States v. Cruz, 363 F.3d 187, 192 ( 2 d Cir. 2004) (internal quotation marks omitted).

E x p e r t testimony is admissible if it "will assist the t r i e r of fact to understand the evidence or to d e t e r m i n e a fact in issue." Fed. R. Evid. 702.

F e r n a n d e z challenges some expert evidence as overly p r e j u d i c i a l ; the district court should only exclude s u c h evidence "if its probative value is substantially o u t w e i g h e d by the danger of unfair prejudice . . . ." F e d . R. Evid. 403.

T h e district court acted within the scope of its d i s c r e t i o n . Agent Clarke's testimony provided b a c k g r o u n d information on money laundering and thereby h e l p e d the jury understand why gold is useful to money l a u n d e r i n g ; Fernandez has identified no serious c o u n t e r v a i l i n g prejudice. Cecilia Gardner's testimony a s s i s t e d the jury's determination of whether gold sold b y Fernandez had traveled in interstate commerce, and h e l p e d the jury understand the significance of the r e q u e s t to "paint" gold. Fernandez has identified no s e r i o u s countervailing prejudice to Gardner's t e s t i m o n y : Gardner gave minimal treatment to her h i s t o r y as a prosecutor. Likewise, Agent Rivera, Agent K r a y e w s k i , and Alexandra Calderon all provided useful b a c k g r o u n d information that was not overly prejudicial.

A c c o r d i n g l y , the district court did not abuse its d i s c r e t i o n in admitting the challenged testimony.

3. Fernandez challenges the sufficiency of the e v i d e n c e showing a nexus with interstate commerce.

W h e r e an appellant challenges sufficiency of the e v i d e n c e , we affirm so long as "any rational trier of f a c t could have found the essential element[] of the c r i m e beyond a reasonable doubt." Jackson v. Virginia, 4 4 3 U.S. 307 , 319 (1979). Here, the uncontroverted testimony of Cecilia Gardner--explaining that all gold sold in New York State is produced out of state- sufficiently demonstrated a nexus with interstate commerce.

F o r the foregoing reasons, the judgment of the d i s t r i c t court is affirmed.

F O R THE COURT: R O S E A N N B. MACKECHNIE, CLERK By: L u c i l l e Carr, Deputy Clerk