Introduction

This case arises from a fraud and money-laundering prosecution in which Defendant-Appellant Shawn Rains was convicted after a jury trial of conspiracy to commit mail fraud (18 U.S.C. § 1349), substantive mail fraud (18 U.S.C. §§ 1341, 2), and conspiracy to commit money laundering (18 U.S.C. § 1956(h)). The district court imposed a sentence of 144 months’ imprisonment and ordered restitution of $4,636,150.69 to the victim, OrthoNet LLC, which included $592,352 in attorneys’ fees under the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A.

On appeal, Rains challenged two rulings: (1) the district court’s jury instruction on conscious avoidance (sometimes called “willful blindness”), contending it was improperly given and confused the specific-intent requirement for mail fraud, and (2) the restitution award, arguing that OrthoNet’s attorneys’ fees were neither “necessary and reasonable” nor sufficiently substantiated with billing records.

The Second Circuit affirmed in all respects. Although issued as a summary order without precedential effect, the decision provides useful guidance on two recurring topics: the careful tailoring of conscious avoidance instructions in cases involving conspiracy and specific-intent offenses, and the evidentiary showing sufficient to support restitution of attorneys’ fees under the MVRA.

Summary of the Opinion

• Jury Instructions: The district court correctly instructed the jury on mail-fraud’s specific-intent requirement and permissibly gave a conscious avoidance instruction limited to the conspiracy charges. The charge explicitly confined conscious avoidance to the “knowledge of the objective of the conspiracy” and cautioned that it could not substitute for a finding that the defendant “knowingly and intentionally joined” the conspiracy. The court rejected the defense claim that giving a conscious avoidance charge on conspiracy was “logically irreconcilable” with a specific-intent mail fraud count, relying on Second Circuit precedent.
• Restitution (MVRA Attorneys’ Fees): The district court did not abuse its discretion by awarding attorneys’ fees as part of restitution. The Second Circuit reiterated that “necessary and reasonable” expenses under the MVRA can include attorneys’ fees, took a broad view of qualifying litigation support (e.g., responding to subpoenas, preparing witnesses), and upheld fees for counsel’s attendance at the testimony of OrthoNet employees and other important parts of the trial as justified in context. The court also held that detailed billing records are not categorically required; an affidavit can suffice where the district court, in its discretion, deems it adequate.
• Disposition: Judgment affirmed.

Analysis

Precedents Cited and Their Role

• United States v. Calk, 87 F.4th 164 (2d Cir. 2023) and United States v. Aina-Marshall, 336 F.3d 167 (2d Cir. 2003): These cases establish the standard for reviewing preserved jury-instruction challenges—de novo review, with reversal only for prejudicial error. The panel cited these to frame the review of Rains’s challenge to the conscious avoidance instruction.
• United States v. Vilar, 729 F.3d 62 (2d Cir. 2013): Clarifies that unpreserved jury-instruction objections are reviewed only for plain error. Although the panel stated it would affirm under either standard, Vilar signals the importance of making specific, timely objections to preserve de novo review.
• United States v. Khalupsky, 5 F.4th 279 (2d Cir. 2021): Key authority upholding the propriety of a conscious avoidance instruction even where the government’s primary theory is actual knowledge and even when the case involves both conspiracy and substantive charges. The panel relied on Khalupsky to reject Rains’s argument that a conscious avoidance instruction is per se improper when paired with a specific-intent substantive offense such as mail fraud.
• United States v. Ojeikere, 545 F.3d 220 (2d Cir. 2008) and United States v. Lucien, 347 F.3d 45 (2d Cir. 2003): Provide that restitution orders are reviewed for abuse of discretion. These cases framed the appellate review of the MVRA attorneys’ fees award.
• United States v. Afriyie, 27 F.4th 161 (2d Cir. 2022): Reaffirms that “necessary and reasonable” expenses under the MVRA can include attorneys’ fees and that such fees can encompass a broad array of tasks directly related to the investigation and prosecution, including responding to subpoenas, document requests, and preparing witnesses.
• United States v. Maynard, 743 F.3d 374 (2d Cir. 2014): Emphasizes the Second Circuit’s “broad view” of what constitutes “necessary” expenses for MVRA purposes—supportive of a generous scope for reimbursable litigation support costs.
• United States v. Cuti, 708 F. App’x 21 (2d Cir. 2017) (summary order): Warns that not all attorneys’ fees qualify as “necessary and reasonable,” such as generalized monitoring of a criminal trial or drafting press releases, absent a demonstrated necessity to advance the prosecution. The panel distinguished Rains on the facts, noting the victim’s counsel attended specific, important testimony and proceedings.
• United States v. Amato, 540 F.3d 153 (2d Cir. 2008): Illustrates that courts may consider detailed invoices and timesheets in MVRA fee awards, but does not impose a mandatory documentation rule. The panel cited this context to underscore that district courts retain discretion about the level of documentation required.

Legal Reasoning

1) Conscious avoidance instruction. The court began by reaffirming the elements of mail fraud: the government must prove that the defendant knowingly and willfully devised or participated in a scheme to defraud with specific intent to cause financial or property loss. The district court’s charge accurately required the jury to find that Rains acted “knowingly and with specific intent to deceive.”

The contested instruction pertained to conspiracy counts. The district court told jurors they could consider conscious avoidance only in determining whether Rains knew the objective of the conspiracy, and explicitly warned that conscious avoidance “cannot be used as a substitute” for finding that he knowingly and intentionally joined the conspiracy. This tailoring respects a key doctrinal boundary: while conscious avoidance can support the knowledge component (e.g., awareness of the conspiracy’s unlawful objective), it cannot bootstrap membership or intent to join.

In rejecting the “logical irreconcilability” argument, the panel relied on Khalupsky, which permits a conscious avoidance charge even when the substantive offense requires specific intent and the government’s principal theory is actual knowledge. The court further emphasized that, read as a whole, the jury instructions left no room for jurors to use conscious avoidance to find the specific intent necessary for mail fraud or to find conspiracy membership without the requisite intentional joining.

2) Restitution of attorneys’ fees under the MVRA. The court reiterated that the MVRA authorizes restitution for “necessary and reasonable” expenses incurred “during and directly related to participation in the investigation or prosecution” (18 U.S.C. § 3663A(a)(4)(A)), and that attorneys’ fees fall within this category. Building on Afriyie and Maynard, the panel endorsed a broad, practical view of necessity, including tasks such as responding to subpoenas, document production, and preparing witnesses.

At the same time, not all legal work is compensable, as Cuti cautions (e.g., generalized trial monitoring or PR work). Here, however, the district court specifically justified the fees for counsel attending every OrthoNet employee’s testimony and other important trial segments—contextualized by the judge’s familiarity with the proceedings—thus supporting a finding of necessity and reasonableness.

On substantiation, the panel rejected a categorical requirement for detailed billing records. While many MVRA awards rest on invoices or timesheets (as in Amato and Afriyie), the district court has discretion to determine the sufficiency of proof. In this case, the court asked for and received an affidavit detailing how the fees were calculated and deemed it adequate. That exercise of discretion was not an abuse, especially given the court’s first-hand knowledge of the trial’s course and counsel’s involvement.

Impact and Practical Implications

Although this is a non-precedential summary order, several practical lessons emerge for litigants in the Second Circuit:

• Conscious avoidance remains a viable alternative theory on conspiracy counts even alongside specific-intent substantive offenses. Prosecutors may request such an instruction, but must accept limiting language that confines it to knowledge of the conspiracy’s objective and disclaims any substitution for intentional membership. Defense counsel should seek and preserve such limiting instructions and object with specificity to any broader usage.
• Jury-instruction preservation matters. The court signaled that it would affirm under either de novo or plain-error review, but Vilar’s framework underscores the importance of timely, specific objections to avoid the higher bar of plain error.
• MVRA attorneys’ fees awards continue to be robust and pragmatic. The Second Circuit’s “broad view” of necessity can support fees for attendance at targeted trial events, especially where the district court can link attendance to advancing the prosecution (e.g., coordinating witnesses, ensuring accurate information flow, addressing subpoenas). Mere “monitoring” or public-relations tasks, by contrast, remain vulnerable to challenge.
• No categorical requirement for detailed billing records. District courts may accept affidavits or other summaries if they find them reliable. That said, victims are well advised to maintain detailed invoices to reduce friction and facilitate judicial review; defendants should request greater specificity when appropriate and identify non-compensable categories early.
• Trial judges’ vantage point is pivotal. Where the trial court has a granular understanding of counsel’s participation and the necessity of specific tasks, the Second Circuit is likely to defer under abuse-of-discretion review.

Complex Concepts Simplified

• Conscious Avoidance (Willful Blindness): A doctrine allowing a jury to infer that a defendant “knew” a critical fact (e.g., the unlawful objective of a conspiracy) if the defendant deliberately avoided confirming what was highly probable. It cannot be used to prove that the defendant actually decided to join a conspiracy or possessed the “specific intent to defraud” required for mail fraud.
• Specific Intent (Mail Fraud): The government must show the defendant intended to deceive and cause financial or property loss. This is a higher mental state than mere knowledge of wrongdoing.
• Conspiracy Elements (18 U.S.C. § 1349 and § 1956(h)): Generally require an agreement to commit a crime and that the defendant knowingly and intentionally joined it. For § 1349, no overt act is required, but knowing participation in the unlawful objective is essential. Conscious avoidance may satisfy the knowledge-of-objective component, not the intentional joining.
• Standards of Review:
  • De novo (jury instructions): The appellate court independently assesses correctness, reversing only if there was prejudicial error.
  • Plain error (unpreserved instructions): A tougher standard: error must be clear/obvious and affect substantial rights and the fairness of proceedings.
  • Abuse of discretion (restitution): The district court’s decision stands unless it is arbitrary, irrational, or based on a clearly erroneous assessment.
• MVRA “Necessary and Reasonable” Expenses: The statute allows restitution for expenses that are both necessary and reasonable and that are incurred during and directly related to investigation or prosecution. The Second Circuit interprets this broadly and includes attorneys’ fees when they advance the prosecution (e.g., subpoena response, document production, witness prep, targeted trial attendance).
• Documentation for MVRA Fees: Detailed invoices are common and helpful but not mandatory. Courts may accept affidavits or summaries if persuaded they are reliable and sufficiently detailed for the specific case.

Conclusion

United States v. Rains reaffirms key boundaries and flexibilities in federal criminal practice within the Second Circuit. On jury instructions, the panel endorsed a carefully cabined conscious avoidance charge on conspiracy counts while preserving the high specific-intent threshold for mail fraud. On restitution, the court sustained a substantial award of attorneys’ fees under the MVRA, underscoring a broad, practical conception of “necessary and reasonable” expenses and recognizing district courts’ discretion to accept affidavits in lieu of detailed billing records.

While the decision is a non-precedential summary order, it offers a clear roadmap: prosecutors can responsibly seek conscious-avoidance instructions when limited to knowledge-of-objective; defense counsel should vigilantly preserve instructional objections and insist on limiting language; and victims, while not categorically required to produce itemized invoices, should expect courts to scrutinize the necessity and reasonableness of claimed fees—particularly where attendance and trial involvement are at issue. The judgment’s affirmance reflects deference to trial courts’ nuanced assessments and the Second Circuit’s continued embrace of a pragmatic MVRA framework.