24-2932 United States v. Rains

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 15th day of October two thousand twenty-five. Present: GUIDO CALABRESI, DENNY CHIN, EUNICE C. LEE, Circuit Judges.

_____________________________________ UNITED STATES OF AMERICA, Appellee, v. 24-2932 JOSEPH MAHARAJ,

Defendant,

SHAWN RAINS,

Defendant-Appellant.

_____________________________________

For Appellee: Stephanie Simon, Assistant United States Attorney (Benjamin Klein, James Ligtenberg and Jacob R. Fiddelman, Assistant United States Attorneys, on the brief), for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.

1 For Defendant-Appellant: Murdoch Walker, II (Bingzi Hu, on the brief), Atlanta, GA.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Nelson S. Román, District Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Shawn Rains was convicted after a one-week trial of conspiracy to

commit mail fraud,

, mail fraud,

§§ 1341, 2, and conspiracy to commit money

laundering, id. § 1956(h). The district court sentenced Rains to 144 months’ imprisonment and

ordered $4,636,150.69 in restitution, including $592,352 in attorneys’ fees, to the victim of his

scheme, OrthoNet LLC (“OrthoNet”). Rains now challenges his conviction and order of

restitution, arguing that the district court erroneously charged the jury on conscious avoidance and

improperly ordered Rains to pay OrthoNet’s attorneys’ fees. We assume the parties’ familiarity

with the underlying facts, procedural history of the case, and issues on appeal.

This court reviews properly preserved challenges to jury instructions de novo, “reversing

only where, viewing the charge as a whole, there was a prejudicial error.” United States v. Calk,

, 177 (2d Cir. 2023) (citing United States v. Aina-Marhsall,

(2d

Cir. 2003)). But “where a defendant fails to make a specific and timely objection to a district

court’s jury charge, those instructions are subject to review only for plain error.” United States v.

Vilar,

(2d Cir. 2013). “We review a district court’s order of restitution for abuse

of discretion.” United States v. Ojeikere,

(2d Cir. 2008) (citing United States v.

Lucien,

(2d Cir. 2003)).

2 I. Jury instructions

Rains argues that he is entitled to a new trial because the district court erred when it

instructed the jury on conscious avoidance. In particular, he contends that the district court’s

instruction as to conscious avoidance on the conspiracy charges erroneously applied to the charge

of mail fraud. We find no defect in the district court’s instructions, whether we review for plain

error or de novo.

The district court clearly and correctly charged the jury as to the elements of mail fraud. It

instructed the jury that it had to find that “the Defendant knowingly and willfully devised or

participated in the scheme with the intent to defraud.” Trial Tr. at 900-901. This required Rains

“to act knowingly and with specific intent to deceive, for the purpose of causing some financial or

property loss to another.” Appendix at 342. It emphasized that “[t]o conclude on this element, if

you find that the Defendant was not a knowing participant in the scheme or that he lacked the

specific intent to defraud, you should find the Defendant not guilty.” Trial Tr. at 905. Although

the district court did give a conscious avoidance charge, it made clear that the jury could “consider

conscious avoidance only in deciding whether a defendant knew the objective of the conspiracy.”

Appendix at 343-44. The district court did not err.

Even if Rains contends that the jury was misled into believing that it could find that he

knowingly and intentionally participated in a conspiracy based on conscious avoidance, rather than

the required mens rea of specific intent, which may be a more appropriate argument, we find no

defect in the district court’s decision. The district court explicitly instructed the jury that

“conscious avoidance cannot be used as a substitute for the finding that the Defendant knowingly

and intentionally joined the conspiracy in the first place.” Appendix at 344.

3 Next, Rains contends that it is “logically irreconcilable”—that is, per se improper—to

instruct the jury as to conscious avoidance on the conspiracy charges where he also faced a charge

of mail fraud, which requires a finding of specific intent. See Appellant’s Br. at 10. That argument

is squarely foreclosed by this court’s precedent. In a case where a defendant was charged with both

conspiracy and an underlying substantive charge, we held that “[e]ven where the government’s

primary theory is that the defendant has actual knowledge, a conscious avoidance charge can be

properly given in the alternative.” United States v. Khalupsky,

, 296 (2d Cir. 2021).

The district court did not err in instructing the jury on conscious avoidance as to the conspiracy

charges.

II. Restitution

Rains next asks that we vacate the district court’s restitution order as to attorneys’ fees

awarded under the Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663A(c). He

argues that certain activities performed by OrthoNet’s attorneys were not necessary and reasonable

under the statute and that OrthoNet’s request for fees was not properly substantiated with billing

records or other documentation. We conclude that the district court did not abuse its discretion in

awarding attorneys’ fees as part of its restitution award.

The MVRA permits victims of certain crimes to recover “necessary and reasonable”

expenses incurred “during and directly related to participation in the investigation or prosecution”

of the offense. 18 U.S.C. § 3663A(a)(4)(A). In this court, it is a “well-established rule that

‘necessary expenses’ can include attorneys’ fees.” United States v. Afriyie,

(2d

Cir. 2022) (citation modified). “Generally, this Circuit takes a broad view of what expenses are

‘necessary.’” United States v. Maynard,

(2d Cir. 2014). Thus, restitution may

4 even be properly ordered as to “work responding to subpoenas and document requests from the

USAO” and “preparing . . . witnesses to testify” at trial. Afriyie,

.

But not all attorneys’ fees are both “necessary and reasonable” under the MVRA. For

example, fees incurred for “monitoring the criminal trial. . . , attending proceedings, reviewing

trial transcripts, generating summaries of trial events, and drafting press releases” may not be

reimbursable where those activities are not “necessary to advance the prosecution.” United States

v. Cuti,

, 24–25 (2d Cir. 2017). While mere attendance at a trial is not

recoverable absent a reasonable need for counsel to be present, the attendance-related attorneys’

fees in this matter were for “attend[ing] the testimony of every OrthoNet employee, as well as

other important parts of the trial.” Appendix at 353. The district court was aware of the parts of

the trial that OrthoNet’s attorneys attended and believed that these were justifiable. Accordingly,

the district court did not abuse its discretion in awarding attendance-related attorneys’ fees in these

circumstances.

Our court has not held that detailed supporting documentation (e.g., billing records,

timesheets, or invoices) must always be produced to substantiate a request for attorneys’ fees,

although district courts may, in their discretion, require such documentation. See e.g., United States

v. Amato,

, 162–63 (2d Cir. 2008) (reviewing a memorandum and “228 pages of

invoices and other documents”); Afriyie,

(reviewing “[m]ore than a hundred pages

of timesheets and invoices”). In the instant case, after OrthoNet’s attorney offered to give the court

“a general sense of how [they] arrived at the fees,” the district court requested only “affidavits

outlining or detailing how legal fees were arrived at.” Sentencing Tr. at 57. OrthoNet’s attorney

then submitted an affidavit complying with the district court’s request. Appendix at 352-57. The

5 district court deemed the detail provided in the affidavit satisfactory; it did not abuse its discretion

in doing so.

* * *

We have considered all of Rains’ remaining arguments and find them to be without merit.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

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