United States v. Archer

22-539
United States v. Archer

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 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 7th day of June, two thousand twenty-three.

PRESENT:

RICHARD J. SULLIVAN,
WILLIAM J. NARDINI,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-539

DEVON ARCHER,

Defendant-Appellant.*
__________________________________

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
For Defendant-Appellant: MATTHEW L. SCHWARTZ (Craig A.
Wenner, on the brief), Boies Schiller
Flexner LLP, New York, NY.

For Appellee: SAMUEL P. ROTHSCHILD (Negar Tekeei,
Hagan Scotten, on the brief), Assistant
United States Attorneys, for Damian
Williams, 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 (Ronnie Abrams, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Devon Archer appeals from a judgment of conviction following a jury trial

in which he was found guilty of conspiracy to commit securities fraud, in violation

of 18 U.S.C. § 371, and securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff

and 17 C.F.R. § 240.10b-5, stemming from his involvement in a scheme to defraud

the Wakpamni Lake Community Corporation of the Oglala Sioux Tribe (the

“Wakpamni”) of the proceeds of a series of bond offerings worth approximately

$60 million. For his role in the scheme, Archer was sentenced to one year and one

day in prison to be followed by one year of supervised release. On appeal, Archer

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raises several challenges to his conviction and sentence, each of which we address

in turn. We assume the parties’ familiarity with the underlying facts, procedural

history, and issues on appeal.

I. The Law-of-the-Case Doctrine

Archer argues that “the law of this Circuit has changed so substantially”

since we reversed the district court’s grant of his motion for a new trial under

Rule 33 of the Federal Rules of Criminal Procedure, see United States v. Archer

(Archer I), 977 F.3d 181 (2d Cir. 2020), that we must reinstate the district court’s

decision or remand to the district court for reconsideration of the motion. Archer

Br. at 30. As a general principle, the law-of-the-case doctrine requires us to

“adhere to [our] own decision at an earlier stage of the litigation.” United States

v. Plugh, 648 F.3d 118, 123 (2d Cir. 2011) (internal quotation marks omitted). But

we need not adhere to the law of the case in the face of an intervening change in

controlling law, new evidence, or the need to prevent a clear error or a manifest

injustice. See Doe v. N.Y.C. Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983). In

asserting that the law of the Circuit has changed since our prior opinion, Archer

relies on United States v. Landesman, 17 F.4th 298 (2d Cir. 2021). That reliance is

misplaced.

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 In Archer I, we clarified that a district court may not grant a motion for a

new trial “based on the weight of the evidence alone unless the evidence

preponderates heavily against the verdict to such an extent that it would be

manifest injustice to let the verdict stand.” Archer I, 977 F.3d at 187–88 (internal

quotation marks omitted). To illustrate when it would be appropriate to grant a

motion for a new trial under this standard, we provided two examples of when a

district court need not “defer to the jury’s resolution of conflicting evidence” –

namely, (1) where the evidence was “patently incredible or defied physical

realities,” or (2) where an “evidentiary or instructional error compromised the

reliability of the verdict.” Id. at 188–89 (internal quotation marks and alterations

omitted). Because Archer I is a published opinion, it binds all future panels of this

Court “unless and until it is overruled by the Court en banc or by the Supreme

Court.” Deem v. DiMella-Deem, 941 F.3d 618, 623 (2d Cir. 2019). The Landesman

panel thus had no authority to overrule our holding in Archer I.

Archer nevertheless argues that Landesman “retreated” from Archer I’s

supposed position that there are only two situations where a district court may

disregard a jury’s resolution of conflicting evidence. Archer Br. at 29. But this is

wrong for two reasons. First, Archer I never said that the two examples it

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provided formed an exhaustive list. Second, Landesman never purported to walk

back the holding in Archer I. For these reasons, Archer’s contention that

Landesman sub silentio reversed Archer I’s holding as applied to him defies logic

and the clear law of this Circuit. We therefore decline to reinstate the district

court’s decision or remand to the district court for reconsideration of Archer’s

motion for a new trial.

II. Archer’s Motion to Suppress

Archer next challenges the sufficiency of two nearly identically worded

warrants used to seize records associated with two of his email accounts.

Specifically, he contends that the warrants flunk the Fourth Amendment’s

particularity requirement because they included three catch-all phrases – “among

other statutes,” “evidence of crime,” and “communications constituting crime” –

that allowed law enforcement officers to search for evidence of any crime rather

than evidence of the Wakpamni scheme alone. Archer Br. at 34–35 (quoting

App’x at 211, 218) (emphasis omitted). We disagree.

“In an appeal from a district court’s ruling on a motion to suppress, we

review legal conclusions de novo and findings of fact for clear error.” United

States v. Freeman, 735 F.3d 92, 95 (2d Cir. 2013). The Fourth Amendment provides

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that “no Warrants shall issue, but upon probable cause, . . . and particularly

describing the place to be searched, and the persons or things to be seized.” U.S.

Const. amend. IV. To satisfy the particularity requirement, a warrant must

(1) “identify the specific offense for which the police have established probable

cause”; (2) “describe the place to be searched”; and (3) “specify the items to be

seized by their relation to designated crimes.” United States v. Ulbricht, 858 F.3d

71, 99 (2d Cir. 2017) (internal quotation marks omitted). But the Fourth

Amendment does not demand “a perfect description of the data to be searched

and seized.” Id. at 100. Rather, “some ambiguity” is permitted “so long as law

enforcement agents have done the best that could reasonably be expected under

the circumstances, have acquired all the descriptive facts which a reasonable

investigation could be expected to cover, and have insured that all those facts were

included in the warrant.” Id. (internal quotation marks omitted).

Here, both warrants specified the offenses for which the officers had

established probable cause, see App’x at 211, 218 (listing 18 U.S.C. § 1348; 15 U.S.C.

§§ 78j(b) and 78ff; 17 C.F.R. 240.10b-5; 18 U.S.C. § 371; and 15 U.S.C. §§ 80b-6 and

80b-17), identified the email accounts to be searched, see id. at 205, 216 (naming the

accounts), and specifically described the material to be seized from those accounts,

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see id. at 205–13, 216–19 (authorizing the collection of email content, address book

content, and transactional information, among other data).

Archer nevertheless contends that the warrants’ inclusion of the phrase

“among other statutes,” id. at 211, 218, at the end of the list of specified crimes for

which there was probable cause authorized an unlawful general search,

untethered to the Wakpamni scheme. But read in context, the warrants make

clear that they were sufficiently tailored to permit “the rational exercise of

judgment by the executing officers in selecting what items to seize.” United States

v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir. 2000) (internal quotation marks and

alterations omitted).

Archer makes similar arguments with respect to the warrants’ use of the

phrases “evidence of crime” and “communications constituting crime.” App’x at

212, 219. But once again, Archer’s interpretation rests on his attempt to isolate

those phrases from the rest of the warrant to suggest that law enforcement officers

were authorized to collect evidence of any crime whatsoever without limitation.

Considered in context, the warrants do no such thing; they authorized a search for

evidence related to only one conspiracy. See id. at 211, 218 (authorizing the

seizure of “evidence of the agreement to engage in a fraudulent scheme involving

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the issuance of bonds on behalf of the Wakpamni . . . and the misappropriation of

the proceeds of those bonds”); see also Andresen v. Maryland, 427 U.S. 463, 479–82

(1976) (concluding that the term “crime” had to be read in the context of the

warrant, and that when so read, it clearly referred to the scheme at issue); United

States v. Riley, 906 F.2d 841, 844 (2d Cir. 1990) (upholding “broadly worded

categories of items” in light of the warrant’s “illustrative list” of items that could

be seized). We therefore cannot say that the district court erred in concluding

that the warrants were sufficiently particularized.

III. Archer’s Severance Motion

Archer also argues that his joint trial with John Galanis subjected him to a

substantial risk of “spillover prejudice.” Archer Br. at 51. Again, we disagree.

In federal courts, there is a preference for defendants who are indicted together to

be tried together. See Zafiro v. United States, 506 U.S. 534, 537 (1993).

Accordingly, severance is required “only if there is a serious risk that a joint trial

would compromise a specific trial right” of a defendant or “prevent the jury from

making a reliable judgment about guilt or innocence.” Id. at 539. We review a

district court’s denial of a motion to sever for abuse of discretion. See United States

v. Amato, 15 F.3d 230, 237 (2d Cir. 1994).

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 Archer first contends that he was prejudiced because the evidence at trial

“overwhelmingly” established Galanis’s guilt, while the evidence against Archer

was “entirely documentary and inferential.” Archer Br. at 56 (internal quotation

marks omitted). Perhaps. But we have “repeatedly recognized that joint trials

involving defendants who are only marginally involved alongside those heavily

involved are constitutionally permissible.” See United States v. Locascio, 6 F.3d

924, 947 (2d Cir. 1993) (collecting cases). And so, while the quantum of evidence

presented against Archer and Galanis may not have been equal, we see nothing in

the record to suggest that the jury was unable to compartmentalize the evidence

against each defendant.

Archer next asserts that the introduction of evidence of Galanis’s prior

conviction specifically subjected Archer to spillover prejudice. But the mere “fact

that evidence may be admissible against one defendant but not another does not

necessarily require a severance.” United States v. Spinelli, 352 F.3d 48, 56 (2d Cir.

2003) (internal quotation marks omitted). Indeed, we have held that introducing

evidence of one defendant’s prior bad acts does not necessarily prejudice other

defendants at trial, see United States v. Cacace, 796 F.3d 176, 192 (2d Cir. 2015), and

we see no reason to take a different approach here. Moreover, the district court’s

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charge – which expressly instructed the jury not to consider the evidence of

Galanis’s prior conviction against Archer – cured any risk of prejudice. See

Spinelli, 352 F.3d at 55 (reasoning that any risk of prejudice in joint trial may be

remedied where, as here, “the district court explicitly instructed the jury to

consider the defendants individually”).

IV. The District Court’s Jury Instructions

Archer challenges the district court’s jury instructions in two respects.

First, he argues that the district court erred by failing to instruct the jury regarding

multiple conspiracies. Second, he contends that the district court erred by

advising the jury that it could infer Archer’s knowledge of the scheme based on a

theory of conscious avoidance. Archer is wrong on both counts.

A. Multiple-Conspiracies Charge

As a general matter, “a criminal defendant is entitled to instructions relating

to his theory of defense, for which there is some foundation in the proof.” United

States v. Dove, 916 F.2d 41, 47 (2d Cir. 1990). Nevertheless, we will vacate a

conviction for failure to give a requested instruction only when the defendant’s

proposed instruction “is legally correct, represents a theory of defense with basis

in the record that would lead to acquittal, and the theory is not effectively

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presented elsewhere in the charge.” United States v. Doyle, 130 F.3d 523, 540 (2d

Cir. 1997) (internal quotation marks omitted). Here, Archer requested an

instruction that the Wakpamni scheme consisted of two conspiracies – one to

misappropriate the proceeds of the Wakpamni bonds, and another one to defraud

the investors who purchased the bonds by failing to disclose material conflicts of

interest.

A defendant is “not entitled to a multiple conspiracy charge” when “only

one conspiracy has been alleged and proved.” United States v. Maldonado-Rivera,

922 F.2d 934, 962 (2d Cir. 1990) (internal quotation marks omitted). To prove a

single conspiracy, the government must show only that “each alleged member

agreed to participate in what he knew to be a collective venture directed toward a

common goal.” United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004) (internal

quotation marks omitted). A cognizable single conspiracy thus does not

transform into multiple conspiracies “merely by virtue of the fact that it may

involve two or more phases or spheres of operation, so long as there is sufficient

proof of mutual dependence and assistance” among the conspirators. United

States v. Berger, 224 F.3d 107, 114–15 (2d Cir. 2000) (internal quotation marks

omitted).

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 Here, the record demonstrates that there was only one conspiracy – to

defraud the Wakpamni into issuing more than $60 million in debt and to

misappropriate the bond proceeds for personal use. To be sure, the conspiracy

involved two types of misrepresentations and two sets of victims. With respect

to the first victim – the Wakpamni – one group of coconspirators lied to the tribe

about how the bond proceeds would be invested. As for the other victims – the

pension funds – a different set of coconspirators lied to them about the nature of

their investment in the bonds. But the two purported conspiracies involved the

same goal (to divert bond proceeds for personal use) and were hatched by the

same individual (Jason Galanis). See id. at 115 (considering overriding goal,

overlap of leadership, and common participants as evidence that several schemes

fell within same conspiracy). We thus agree with the district court’s conclusion

that there was no factual basis for a multiple-conspiracies charge.

B. Conscious-Avoidance Charge

Archer also challenges the district court’s conscious-avoidance instruction.

A conscious-avoidance instruction is appropriate when (1) “a defendant asserts

the lack of some specific aspect of knowledge required for conviction,” and (2) “the

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appropriate factual predicate for the charge exists.” United States v. Aina-

Marshall, 336 F.3d 167, 170 (2d Cir. 2003). Both requirements are met here.

As to the first prong, Archer clearly disputed his knowledge of the object of

the alleged conspiracy. While Archer did not testify, his knowledge of the goals

of the conspiracy was plainly in dispute at trial, see, e.g., App’x at 894 (“The money

did move that way, it moved in a big circle, but Devon didn't know it.” (emphasis

added)), and in fact, remains disputed on appeal, see, e.g., Archer Br. at 45 (arguing

that Archer “had no idea” that the source of the funds used to purchase the second

bond issuance came from the first bond issuance).

With respect to the second prong, there was a sufficient factual predicate for

a conscious-avoidance instruction on the facts before the jury. In Archer I, we

catalogued many of the red flags Archer received during the course of the scheme,

including the “Ponzi-like” funding of the second bond purchase using the

proceeds of the first and the circuitous routing of $15 million to make that

purchase. 977 F.3d at 192–93. On this record, we see no reason to second-guess

the district court’s conscious-avoidance instruction. See United States v. Eltayib, 88

F.3d 157, 170 (2d Cir. 1996) (explaining that “if the defendant’s participation in the

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conspiracy has been established, conscious avoidance may support a finding with

respect to the defendant’s knowledge of the objectives or goals of the conspiracy”).

Archer counters that the charge was improper because the government

affirmatively argued that Archer had “‘devised a scheme, a scheme to use tribal

bonds to fuel’ his ‘business empire.’” Archer Br. at 44 (quoting App’x at 248).

But a conscious-avoidance instruction is appropriate even where the government’s

primary theory is that the defendant had actual knowledge. See United States v.

Hopkins, 53 F.3d 533, 542 (2d Cir. 1995) (holding that a conscious-avoidance

instruction is proper even when “the government has primarily attempted to

prove that the defendant had actual knowledge, while urging in the alternative

that if the defendant lacked such knowledge it was only because he had studiously

sought to avoid knowing what was plain”). 1

1 Archer also argues that the government improperly urged the jury to infer his “intent to
participate in the alleged conspiracy” based on a theory of conscious avoidance. Archer Br. at 46
(emphasis added). As this argument does not relate to the district court’s jury instructions,
Archer must show that the government’s arguments “resulted in substantial prejudice by so
infecting the trial with unfairness as to make the resulting conviction a denial of due process.”
United States v. Aquart, 912 F.3d 1, 27 (2d Cir. 2018) (internal quotation marks omitted). Contrary
to Archer’s assertion, the government argued only that the jury could infer Archer’s knowledge of
the object of the conspiracy based on conscious avoidance. See, e.g., App’x at 792 (arguing that “you
can’t put your head in the sand; you can’t see all these red flags, all these things about these
transactions that don’t make any sense and not want to know,” as “[t]hat is the same thing as
acting knowingly”); id. at 1096 (arguing that the deal “is filled with red flags from Archer[’s] . . .
perspective” and that “you can’t say you didn’t know because you stuck your head in the sand”).
It never argued that Archer’s participation in the conspiracy itself was a product of his willful

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V. Sentencing Challenge

Archer also argues that the district court committed reversible error by

refusing to engage in the requisite fact-finding at sentencing pursuant to the

applicable preponderance-of-the-evidence standard. Specifically, he contends

that this error infected the court’s calculation of his offense level because the court

added a twenty-two level enhancement for loss amount and a two-level

enhancement for ten or more victims based on a “guess” as to what “facts a jury

might have found.” Archer Br. at 18.

While Archer may disagree with the district court’s factual findings, there

can be no doubt that the court properly understood its role in assessing Archer’s

offense conduct under the Sentencing Guidelines. Before calculating Archer’s

offense level, the district court stated that it would “evaluate the enhancements to

Mr. Archer’s sentence under the typical preponderance[-]of[-]the[-]evidence

standard.” App’x at 2130. The district court then reviewed the evidence

showing Archer’s knowledge of the full scope of the Wakpamni scheme. The

blindness. Compare United States v. Scotti, 47 F.3d 1237, 1243 (2d Cir. 1995) (holding that a
conscious-avoidance charge may not be used on the issue of “membership in a conspiracy”), with
United States v. Tropeano, 252 F.3d 653, 660 (2d Cir. 2001) (holding that a conscious-avoidance
charge may “support a finding that a defendant knew of the objects of the conspiracy”). We thus
discern no error on this score, plain or otherwise.

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court observed, for example, that Archer “personally purchased $15 million worth

of bonds in the second issuance using money given to him by Jason Galanis, made

representations to the [Wakpamni] that he was purchasing the bonds ‘for his own

account and for investment only,’ transferred them to another entity controlled by

his codefendants, [and] made false statements about the source of the money to

Morgan Stanley and Deutsche Bank.” Id. at 2132. The district court also

highlighted evidence showing that Archer was “informed about the progress of

the [investment advisers’] acquisitions” and that he was aware of the “possibility

of placing the Wakpamni bonds with them.” Id. Based on this evidence, the

court found “by a preponderance of the evidence” that Archer was aware of the

full loss amount and number of victims. Id. at 2132–33.

Against this clear record, Archer cherry-picks a handful of sentence

fragments from the sentencing hearing transcript to argue that the district court

shirked its fact-finding responsibilities and assumed “that it was required to defer

to factual findings that it believed were ‘implicit in the jury’s verdict,’ but which

[actually] went far beyond the elements of the charged crimes.” Archer Br. at 12

(quoting App’x at 2154). But the full transcript reveals that the district court did

no such thing. See, e.g., App’x at 2114 (“I don’t think I need to accept every fact

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argued by the government at summation.”); id. at 2116 (“I don’t think I necessarily

need to find that he was involved in every aspect of the scheme.”). At bottom,

the district court correctly exercised its discretion and engaged in its own

independent fact-finding to support its calculation of Archer’s offense level under

the Sentencing Guidelines. 2

* * *

We have considered Archer’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

2 At oral argument, counsel for Archer argued for the first time that the district court
miscalculated Archer’s Sentencing Guidelines range. While counsel initially represented that
this issue was “less developed in the briefing,” he ultimately conceded that it was, in fact, not
developed at all. Oral Argument at 5:22–7:40. Because Archer failed to raise this argument in
his opening brief or his reply brief, he has forfeited it. See United States v. Cedeno, 644 F.3d 79, 83
n.3 (2d Cir. 2011).

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