United States v. Moran-Toala, No. 12-2010 (2d Cir. 2013)
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Defendant was convicted of conspiracy to exceed authorized access to a government computer in furtherance of a narcotics conspiracy. On appeal, defendant principally challenged the supplemental instruction regarding the jury's power to render inconsistent verdicts. The court concluded that the district court's instruction misled the jury as to its duty to follow the law and such error was not harmless where the court could not say with any confidence that it was clear beyond a reasonable doubt that a properly instructed jury would have convicted defendant of felony-level unlawful computer access conspiracy. Accordingly, the court vacated the judgment of conviction based on such error and remanded for further proceedings.
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12-2010-cr United States v. Moran-Toala 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2012 4 (Argued: June 20, 2013 Decided: August 12, 2013) 5 Docket No. 12-2010-cr 6 ------------------------------------- 7 UNITED STATES OF AMERICA, 8 Appellee, 9 - v - 10 ELIZABETH MORAN-TOALA, 11 Defendant-Appellant. 12 ------------------------------------- 13 Before: CALABRESI, CABRANES, and SACK, Circuit Judges. 14 Appeal from a May 10, 2012 judgment of the United 15 States District Court for the Eastern District of New York 16 (Frederic Block, Judge), after a jury trial, convicting 17 Elizabeth Moran-Toala of conspiracy to exceed authorized 18 access to a government computer in furtherance of a 19 narcotics conspiracy in violation of 18 U.S.C. §§ 371 and 20 1030(c)(2)(B)(ii). 21 conspiracy charges, however, after the district court 22 instructed the jury in effect that it was permitted to 23 return inconsistent verdicts. The jury acquitted her of narcotics We conclude that this 1 instruction was erroneous and that the error was not 2 harmless. Vacated and remanded. 3 PATRICIA E. NOTOPOULOS (Jo Ann M. Navickas, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee. 4 5 6 7 8 9 FLORIAN MIEDEL, Law Office of Florian Miedel, New York, NY, for Defendant-Appellant. 10 11 12 13 SACK, Circuit Judge: Although juries are supposed to render verdicts 14 15 that are consistent with one another, from time to time they 16 do not. 17 criminal defendant cannot exploit any such inconsistency in 18 the jury's verdicts to secure a new trial. 19 presents not a direct challenge to inconsistent verdicts, 20 but instead a related question: whether the district court 21 erred when it instructed the jury in effect that it was 22 permissible to render inconsistent verdicts, and whether, in 23 light of that instruction, the jury verdicts and judgment 24 based thereon can stand.1 When this happens, it is well established that a 1 This appeal The government concedes (and we agree) that in light of the fact that the jury acquitted the defendant of one of the conspiracy charges, no matter how that acquittal was affected by the court's supplemental instruction, the judgment of acquittal on that charge cannot be appealed 2 BACKGROUND 1 From February 2003 to October 2007, Defendant 2 3 Moran-Toala was employed as a Federal Customs and Border 4 Patrol ("CBP") officer at Hollywood International Airport in 5 Fort Lauderdale, Florida. 6 Analytical Unit," which required her to review flight 7 manifests to identify airline passengers who were suspected 8 of involvement in criminal activity. 9 Moran-Toala cross-checked names in a database known as the 10 Treasury Enforcement Communications System ("TECS"), which 11 collects information from thousands of databases, including 12 those containing flight and travel information, border 13 crossings, reports of seizures of contraband, criminal 14 history information, outstanding warrants, and motor vehicle 15 records. 16 TECS database for personal reasons or for information 17 otherwise unrelated to official business, and they must 18 complete various privacy awareness training courses in order 19 to understand these obligations. She worked in a "Passenger In order to do so, CBP officers are prohibited from "browsing" the because, under protections afforded to the defendant by the Double Jeopardy Clause of the Fifth Amendment, the charge could not in any event be pursued by the government on remand. See U.S. CONST. amd. V. 3 1 The Eastern District of New York Conspiracy 2 In 2005, Immigration and Customs Enforcement 3 agents began investigating a suspected narcotics conspiracy 4 involving Jorge Espinal, a Delta Airlines baggage handler at 5 New York's John F. Kennedy Airport. 6 obtained a judicially-authorized wiretap on Espinal's phone, 7 which disclosed that Espinal was working with a New York- 8 based narcotics distributor named Henry Polanco. 9 told Polanco that because he was a luggage-ramp supervisor, 10 he could intercept shipments of narcotics from Delta planes 11 arriving at the airport, and that such shipments would not 12 be screened on arrival by CBP agents. 13 a supplier in the Dominican Republic to hide packages 14 containing cocaine, heroin, and ecstasy on many Delta 15 flights that traveled directly from Santiago, in the 16 Dominican Republic, to New York. 17 seized six of Polanco and Espinal's shipments, two of which 18 are pertinent to Moran-Toala's case. Law enforcement agents Espinal Polanco arranged for CBP agents ultimately First, Espinal and Polanco arranged for a backpack 19 20 containing heroin and cocaine to be stashed on a February 21 11, 2006 Delta flight from the Dominican Republic to New 22 York. 23 retrieve it. 24 shipment had been intercepted. CBP agents seized the backpack before Espinal could Espinal did not immediately realize that the 4 He told Polanco, wrongly as 1 it turned out, that the bag had been placed on the 2 international baggage carousel, and then in unclaimed 3 baggage, but that he, Espinal, was trying to get it back. The Dominican supplier became concerned about 4 5 Espinal's failure to retrieve the backpack, suspecting that 6 Espinal and Polanco had stolen the drugs. 7 demanded that Espinal and Polanco return the shipment or pay 8 him for the loss. 9 they had not stolen the drugs, Espinal said that "his The supplier To prove to the Dominican supplier that 10 girlfriend worked for the government and that she had access 11 to [seizure of contraband] information," so "he was going to 12 tell her to get the information of the seizure to prove 13 . . . that the seizure was real." 14 Tr.") at 248:17-249:5; Joint App'x at 329-30. 15 14, 2006, three days after the shipment went missing, Moran- 16 Toala used TECS to access the seizure report for the 17 backpack in question. Trial Transcript ("Trial On February Second, as a result of a wiretap, law enforcement 18 19 agents knew that Espinal and Polanco had arranged for a 20 "mule"2 named Henry Cabrera to carry a suitcase containing 21 narcotics on an August 24, 2007 Delta flight from the 2 "In the quaint jargon of the narcotic trade, individuals who smuggle narcotics on their persons are known as 'mules.'" United States v. Vivero, 413 F.2d 971, 972 n.1 (2d Cir. 1969) (per curiam). 5 1 Dominican Republic to JFK Airport. The agents planned to 2 arrest Cabrera as he exited the plane. 3 waiting for the flight to arrive, they saw Espinal attempt 4 to enter a sterile area, apparently to meet Cabrera and take 5 the suitcase before Cabrera reached customs screening. 6 Espinal reported to Polanco that the heavy law enforcement 7 presence prevented him from meeting Cabrera and that he did 8 not know what happened to the suitcase, but Polanco 9 suspected that Espinal had stolen the drugs. While they were Again, Espinal 10 said that he would contact his girlfriend to confirm that 11 Cabrera had been arrested as he deplaned, as proof that the 12 drugs were seized by law enforcement, and not stolen. 13 On August 29, 2007, Moran-Toala again used TECS to 14 access Cabrera's arrest report. 15 records, on the morning of August 30, 2007, Moran-Toala 16 placed a telephone call to the phone located at Espinal's 17 work station at JFK Airport. 18 According to her telephone In addition, Espinal had an associate named Victor 19 Perez who smuggled money to the Dominican Republic at 20 Espinal's behest. 21 Dominican Republic for that purpose, but was afraid that 22 there might be an unrelated outstanding warrant for his 23 arrest issued as a result of his failure to pay child 24 support, which might pose a problem for him during reentry Perez was planning to fly to the 6 1 into the United States. On or about August 29, 2007, 2 Espinal told Perez that he had a "lady friend" who could 3 check to see whether Perez had any outstanding warrants. 4 Trial Tr. at 486:18; Joint App'x at 566. 5 his date of birth and social security number. 6 1, 2007, Moran-Toala conducted a TECS search using Perez's 7 personal information. 8 outstanding warrants or criminal history information. 9 Moran-Toala's phone records reflect two outgoing calls to Perez gave Espinal On September The search did not unearth any 10 Espinal on that day. A few days later, Espinal told Perez 11 that it was safe for him to travel. 12 Moran-Toala was indicted in the United States 13 District Court for the Eastern District of New York on 14 February 19, 2008, in connection with these events. 15 superseding indictment filed on April 2, 2009, she was 16 charged, in Count One, with conspiracy to import more than 17 one kilogram of heroin and more than five kilograms of 18 cocaine, in violation of 21 U.S.C. §§ 960, 963; and, in 19 Count Two, with conspiracy to use a government computer 20 unlawfully, in violation of 18 U.S.C. §§ 1030(a)(2)(B), 21 1030(c)(2)(B)(ii). 22 misdemeanor offense, but is subject to a felony enhancement 23 if "the offense was committed in furtherance of any criminal In a Unlawful use of a computer is a 7 1 or tortious act in violation of the Constitution or laws of 2 the United States." 18 U.S.C. § 1030(c)(2)(B)(ii). 3 The Southern District of Florida Conspiracy 4 While the New York conspiracy case was pending, 5 Moran-Toala was indicted in the Southern District of Florida 6 for her alleged involvement in a separate heroin importation 7 and distribution conspiracy with her sister and brother-in- 8 law, officers of the CBP and Transportation Security 9 Administration, respectively. On April 16, 2010, she 10 pleaded guilty to the Florida narcotics conspiracy charges. 11 In her signed, written plea allocution, Moran-Toala admitted 12 that she used the TECS system to run travel checks for drug 13 couriers flying out of Fort Lauderdale to help ensure safe 14 delivery of the drugs. 15 shipment of narcotics was seized in April 2007, she used 16 TECS to access the seizure report to prove to her supplier 17 that the product was seized and not stolen. 18 sentenced to a term of 120 months' imprisonment for the 19 Florida conspiracy. She also admitted that when a Moran-Toala was 20 Trial in the Eastern District of New York 21 Back in the Eastern District of New York, on June 22 21, 2011, Moran-Toala proceeded to trial before a jury on 23 both counts of the superseding indictment. 24 misusing her CBP computer, but asserted that she did so with 8 She admitted to 1 no knowledge of Espinal and Polanco's criminal purpose, let 2 alone any intent to further it. 3 Rule 404(b) Evidence 4 During trial, the government moved under Rule 5 404(b) of the Federal Rules of Evidence to admit Moran- 6 Toala's Florida plea allocution as evidence of her knowledge 7 of the New York narcotics conspiracy. 8 conceded that the plea allocution fell within the ambit of 9 Rule 404(b), it objected to the admission of this evidence Although the defense 10 on Rule 4033 prejudice grounds. 11 initially hesitated, noting that if the plea allocution came 12 in, "[i]t wouldn't take more than ten seconds [for the jury] 13 to find her guilty." 14 374. 15 allow the evidence to be admitted, noting that "knowledge 16 and scheme and intent [are] very much at play." 17 at 515:24; Joint App'x at 595. The district court Trial Tr. at 293:9-10; Joint App'x at Ultimately, however, the district court decided to 3 Trial Tr. Over the defense's objection Federal Rule of Evidence 403 provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." (emphasis added). 9 1 and after heavy editing by the court, the government was 2 allowed to present the following stipulation to the jury: 3 4 5 6 7 8 9 [I]t is agreed among the parties that as part of the statement under oath during a guilty plea in a different case on April 16th, 2010, before the Honorable James I. Cohen, United States District Judge, Southern District of Florida, the defendant admitted the following. 10 11 12 13 14 15 16 17 18 19 20 21 In furtherance of a drug conspiracy that began in approximately June 2006, between herself, her sister Cindy Moran, and a third individual, [a defendant in the Florida case,] Elizabeth Moran-Toala misused her work computer and ran the names of people she knew entering the United States from the Dominican Republic carrying narcotics. Elizabeth MoranToala scrolled down the manifest in order to avoid detection, rather than simply entering the courier's name. 22 23 24 25 26 27 [T]he purpose of those inquiries [was] to ensure the couriers . . . would not encounter[] any difficult[ies] at Customs[.] [F]or her part in this conspiracy, Elizabeth Moran-Toala was paid $10,000. 28 Trial Tr. at 534:13-535:4; Joint App'x at 614-15. 29 prosecutor had finished reading the stipulation into the 30 record, the district court immediately gave the jury a 31 strongly worded limiting instruction, emphasizing that they 32 could consider the stipulation only for the purpose of 33 determining whether Moran-Toala knew that she was misusing 34 the computer to further a crime -- the narcotics conspiracy 10 When the 1 -- and not as evidence that she has a "propensity to commit 2 crimes." Trial Tr. at 535:16; Joint App'x at 615. 3 The Jury Charge and Verdict Sheet 4 In its charge as to the law with respect to the 5 felony enhancement for the unlawful computer use conspiracy, 6 the district court instructed the jury: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 If you determine, in respect to count two [conspiracy to exceed authorized computer access], that the defendant is guilty of that count, you must determine whether the government has proved beyond a reasonable doubt that Section [1030(a)(2)(B)(ii)] -- that the offense in that section was committed in furtherance of a criminal act in violation of the Constitution and laws of the United States; namely, the conspiracy to import narcotics as charged in count one. It's linked to count one if you find she is guilty. 21 22 23 24 25 26 27 28 29 30 31 32 The phrase in furtherance means with the intent to help, advance, move forward, promote or facilitate. The government must therefore show that the defendant engaged in the conduct of accessing the United States Department of Homeland Security computer in excess of authorization, with the intent to advance, move forward, promote or facilitate the conspiracy charged in count [one] about which I've already instructed you. 33 Trial Tr. at 665:10-25; Joint App'x at 745. 34 objected to this instruction. 35 36 Neither party The district court provided the jury with a verdict sheet containing various questions. 11 Question 1 1 asked the jury to report its verdict on Count One, the 2 narcotics conspiracy count. 3 find the amounts of heroin and cocaine involved in the 4 narcotics conspiracy, if any. 5 report its verdict on Count Two, for conspiracy to exceed 6 authorized computer access. 7 [unlawful computer use] conspiracy in furtherance of the 8 crime charged in Count One, namely, the conspiracy to import 9 a controlled substance?" Question 2 asked the jury to Question 3 asked the jury to Question 4 asked, "Was the If the jury answered Question 4 10 affirmatively, Moran-Toala would be subject to a felony 11 enhancement on Count Two, for conspiring to unlawfully use a 12 computer. 13 Jury Deliberations 14 At approximately 4:15 p.m. on June 28, 2011, the 15 first full day of deliberations, the jury sent back a note 16 asking "Count 2: must the verdict in #4 be in agreement with 17 Count #1?" 18 In other words, the jury was asking whether the findings on 19 which it based its response to Question 4 on the verdict 20 sheet (i.e., did Moran-Toala participate in a conspiracy to 21 unlawfully use a computer in furtherance of the crime 22 charged in Count One, conspiracy to import a controlled 23 substance) had to be consistent with its verdict on Count 24 One itself. Jury Note, June 28, 2011; Joint App'x at 799. The district court shared the contents of the 12 1 note with counsel and solicited their respective views. 2 government argued that the answer should be "no." 3 government's view, Moran-Toala could have intended to exceed 4 her authorized computer access in furtherance of the 5 narcotics conspiracy without agreeing to join it or without 6 having enough knowledge of the narcotics conspiracy to be 7 deemed a member. 8 to answer the jury's question affirmatively, foreclosing any 9 possibility of inconsistent verdicts. 10 The In the Defense counsel urged the district court Although the district court's "gut feeling" was to 11 agree with the defense that the verdicts must be consistent, 12 Trial Tr. at 697:20; Joint App'x at 777, the court 13 ultimately told the jury that its verdict on the narcotics 14 conspiracy and the felony enhancement did not have to be "in 15 agreement," Trial Tr. at 700:3-4; Joint App'x at 780. 16 court explained its change of heart as a reluctance "to 17 charge the government out of court." 18 17; Joint App'x at 780. 19 The Trial Tr. at 700:16- Approximately twenty minutes after the district 20 court responded to the jury's note, at 5:02 p.m., the jury 21 returned its verdict. 22 supplemental instruction, the jury acquitted Moran-Toala of 23 the narcotics conspiracy, but convicted her of conspiring to Consistent with the district court's 13 1 unlawfully access a computer in furtherance of the same 2 narcotics conspiracy. 3 Rule 33 Motion 4 Following trial, Moran-Toala moved to set aside 5 the jury's findings with respect to the felony enhancement 6 pursuant to Rule 33 of the Federal Rules of Criminal 7 Procedure. 8 the district court denied Moran-Toala's Rule 33 motion. 9 court began by noting: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 In a memorandum and order dated March 8, 2012, While there may be scenarios in which an individual can act in furtherance of a conspiracy without joining the conspiracy, there is no view of the evidence in this particular case that would permit that conclusion. The government's theory at trial was that Moran Toala would, at a co-conspirator's request, periodically access confidential information regarding narcotics seizures and other information and pass it on to the coconspirator. . . . By finding that Moran Toala committed the conspiracy computer offense "in furtherance of the crime charged in Count one," the jury necessarily determined that she had agreed with another -- her co-conspirator on the computer charge -- to commit the crime; that she had intentionally advanced the narcotics conspiracy; and that she had committed an overt act in furtherance of the conspiracy. Put simply, Moran Toala could not have intentionally misused her computer to advance a narcotics conspiracy without being a member of that conspiracy. Thus, when the jury asked whether the special verdict on the [felony] enhancement needed to be "in agreement" with its 14 The 1 2 3 verdict on count one, it was effectively asking whether the verdict had to be consistent. 4 United States v. Moran-Toala, No. 08 Cr. 103, 2012 WL 5 748612, at *3, 2012 U.S. Dist. LEXIS 30893, at *7-*8 6 (E.D.N.Y. Mar. 8, 2012) (footnote omitted). 7 the district court rejected the Rule 33 motion because "even 8 assuming that the Court erroneously sanctioned an 9 inconsistent verdict, that error would not alter the general Nevertheless, 10 rule that such verdicts are unreviewable." 11 748612, at *4, 2012 U.S. Dist. LEXIS 30893, at *9. 12 Id., 2012 WL On May 4, 2012, the district court sentenced 13 Moran-Toala, principally, to a term of 12 months' 14 imprisonment, to run concurrently with the 10-year sentence 15 she is serving for the Florida narcotics conspiracy 16 conviction. 17 instruction regarding the jury's power to render 18 inconsistent verdicts, as well as the admission of the 19 Florida plea allocution, seeking a new trial on the unlawful 20 computer access conspiracy charge. 21 22 Moran-Toala now challenges the supplemental DISCUSSION We note at the outset that because the jury, 23 rightly or wrongly, consistently or inconsistently, 24 acquitted the defendant on Count One, the narcotics 25 conspiracy count, the Double Jeopardy Clause bars any 15 1 retrial of the defendant for that offense. See Evans v. 2 Michigan, -- U.S. --, 133 S. Ct. 1069, 1074 (2013) ("It has 3 been half a century since we first recognized that the 4 Double Jeopardy Clause bars retrial following a court- 5 decreed acquittal . . . ."). 6 limited to the defendant's conviction on Count Two: the 7 misdemeanor conspiracy to exceed authorized computer access 8 count, and its accompanying felony enhancement, which 9 applies only if the unlawful computer-use conspiracy was This appeal is therefore 10 committed in furtherance of the narcotics conspiracy charged 11 in Count One. 12 I. The Supplemental Jury Instruction 13 As we previously noted, whether the jury rendered 14 inconsistent verdicts is not, in and of itself, the basis 15 for this appeal. 16 to try to reconcile the jury's acquittal as to the 17 defendant's participation in the Espinal-Polanco narcotics 18 conspiracy charged in Count One with the jury's conviction 19 as to Count Two, the defendant's participation in a 20 conspiracy to access TECS with the intent to further the 21 Espinal-Polanco narcotics conspiracy.4 On the face of it, it does seem hopeless 4 But Moran-Toala does By ultimately convicting Moran-Toala of the unlawful computer access conspiracy, the jury determined that: she agreed with Espinal to gain access to TECS, she committed an overt act in furtherance of the conspiracy, and she did so 16 1 not directly challenge, nor could we review, the verdict for 2 inconsistency. 3 in the verdict is not necessary." 4 284 U.S. 390, 393 (1932). 5 follow the instructions of the trial court, may make its 6 ultimate decisions 'for impermissible reasons,' such as 7 'mistake, compromise, or lenity.'" 8 17 F.3d 538, 545 (2d Cir. 1994) (quoting United States v. 9 Powell, 469 U.S. 57, 63, 65 (1984)). It has long been the law that "[c]onsistency Dunn v. United States, "[T]he jury, though presumed to United States v. Acosta, Inconsistent verdicts 10 are unreviewable on appeal, even though "'error,' in the 11 sense that the jury has not followed the court's 12 instructions, most certainly has occurred," because "the 13 possibility that the inconsistent verdicts may favor the 14 criminal defendant as well as the Government militates 15 against review of such convictions at the defendant's 16 behest." 17 Powell, 469 U.S. at 65. But it does not follow from judicial inability to 18 disturb inconsistent verdicts after the fact that the 19 district court may sanction potentially inconsistent 20 verdicts ex ante. It is on that basis that Moran-Toala with the intent to advance the narcotics conspiracy. It is difficult to see how these findings would not compel the jury also to find that Moran-Toala agreed with Espinal to import narcotics and that she misused used her CBP computer to further that narcotics conspiracy. 17 1 challenges the supplemental jury instruction: the court's 2 single-word answer "No" to the note from the jury, which, 3 she argues, wrongly gave the jury explicit permission to 4 return inconsistent verdicts, at its discretion. 5 6 A. 7 The District Court's Supplemental Jury Instruction was Erroneous "A jury instruction is erroneous if it misleads 8 the jury as to the correct legal standard or does not 9 adequately inform the jury on the law." United States v. Al 10 Kassar, 660 F.3d 108, 126 (2d Cir. 2011) (alterations and 11 internal quotation marks omitted). 12 initially explained to the jury that its verdict on the 13 narcotics conspiracy count should be "linked" to its 14 findings with respect to the felony enhancement because 15 Moran-Toala could be subject to the felony enhancement only 16 if the government proved that she unlawfully used her CBP 17 computer with the intent to further the narcotics 18 conspiracy. 19 overlap in the legal elements of the two conspiracy charges, 20 and the facts applicable to each. 21 recognized the tension between a potential verdict 22 acquitting Moran-Toala of participating in a narcotics 23 conspiracy while finding that she agreed with another to 24 misuse her CBP computer with the intent to further that Here, the court This instruction reflected the considerable 18 The jury clearly 1 narcotics conspiracy, or vice versa. 2 other coherent reason for the jury to send a note seeking 3 judicial guidance, a note that we understand to be 4 tantamount to a request for permission to unlink its 5 verdicts by ignoring the intent requirement in the felony 6 enhancement charge or by disregarding the majority of the 7 narcotics conspiracy charge. 8 response, blessed the jury's clear desire to render verdicts 9 it considered inconsistent, or not "in agreement," with the 10 11 We can think of no The district court, in law and the evidence. Inconsistent verdicts are often characterized as a 12 form of jury nullification. "Nullification is, by 13 definition, a violation of a juror's oath to apply the law 14 as instructed by the court -- in the words of the standard 15 oath administered to jurors in the federal courts, to render 16 a true verdict according to the law and the evidence." 17 United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997) 18 (internal quotation marks omitted; emphasis in original). 19 The case before us does not arise from jury nullification -- 20 the jury followed the court's instruction that an 21 inconsistent verdict was permissible. 22 have been one of nullification had the district court 23 answered "yes" to the jury's question as to whether 24 inconsistent verdicts were prohibited and the jury 19 The jury's act would 1 nevertheless returned the same verdict. But irrespective of 2 the jury's ultimate decision, the supplemental instruction 3 cleared the way for the jury to return verdicts the jurors 4 themselves could not reconcile in light of the court's 5 charge of law and the evidence presented. In Thomas, "[w]e categorically reject[ed] the idea 6 7 that, in a society committed to the rule of law, jury 8 nullification is desirable or that courts may permit it to 9 occur when it is within their authority to prevent." Id. at 10 614. It plainly follows, as we have concluded, that there 11 is no error in a district court's refusal to give a jury a 12 charge that informs them of their right or ability to 13 nullify. 14 Cir. 1996) (per curiam). 15 court for instructing a jury that it has a "duty" to convict 16 if the government proves a defendant's guilt beyond a 17 reasonable doubt. 18 20 (2d Cir. 2005) ("Nothing in our case law begins to 19 suggest that the court cannot also tell the jury 20 affirmatively that it has a duty to follow the law, even 21 though it may in fact have the power not to."). 22 power of juries to 'nullify' or exercise a power of lenity 23 is just that -- a power; it is by no means a right." 24 Thomas, 116 F.3d at 615. See United States v. Edwards, 101 F.3d 17, 19 (2d Nor have we faulted a district United States v. Carr, 424 F.3d 213, 219- 20 Thus "the We conclude that, in its very brief and 1 2 extemporaneous late-afternoon response to the jury's 3 question regarding a possible inconsistent verdict on the 4 narcotics conspiracy count and the felony enhancement, the 5 district court was effectively inviting them so to rule, 6 contrary to law. 7 conveys an implied approval that runs the risk of degrading 8 the legal structure . . . ." 9 473 F.2d 1113, 1137 (D.C. Cir. 1972). Such an "explicit instruction . . . United States v. Dougherty, Thus, the district 10 court's instruction misled the jury as to its duty to follow 11 the law. 12 B. 13 Nature of the Error 1. Structural Error. "The Supreme Court has 14 distinguished two kinds of errors that can occur at, or in 15 relation to, a criminal proceeding: so-called 'trial 16 errors,' which are of relatively limited scope and which are 17 subject to harmless error review, and 'structural defects,' 18 which require reversal of an appealed conviction because 19 they 'affect[] the framework within which the trial 20 proceeds.'" 21 (2d Cir. 2000) (quoting Arizona v. Fulminante, 499 U.S. 279, 22 307-10 (1991)). 23 structural only if they so fundamentally undermine the 24 fairness or the validity of the trial that they require United States v. Feliciano, 223 F.3d 102, 111 "Errors are properly categorized as 21 1 voiding its result regardless of identifiable prejudice." 2 Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996). 3 Courts have recognized a limited number of 4 structural errors, all involving the violation of bedrock 5 constitutional rights, such as total deprivation of the 6 right to counsel, see Gideon v. Wainwright, 372 U.S. 335 7 (1963); United States v. Triumph Capital Grp., Inc., 487 8 F.3d 124, 131 (2d Cir. 2007); exclusion of jurors on the 9 basis of race, see Vasquez v. Hillery, 474 U.S. 254 (1986); 10 Tankleff v. Senkowski, 135 F.3d 235, 240 (2d Cir. 1998); and 11 improper closure of a courtroom to the public, see Waller v. 12 Georgia, 467 U.S. 39 (1984); United States v. Gupta, 699 13 F.3d 682, 688 (2d Cir. 2012). 14 The category of recognized structural errors with 15 regard to jury instructions is even more limited. 16 a general proposition, "harmless-error analysis applies to 17 instructional errors so long as the error at issue does not 18 categorically 'vitiate all the jury's findings.'" 19 v. Pulido, 555 U.S. 57, 61 (2008) (quoting Neder v. United 20 States, 527 U.S. 1, 11 (1999) (alteration omitted) (emphasis 21 in original)). 22 Thus, as Hedgpeth The instructional error here does not cross that 23 threshold, nor does it implicate the overall fundamental 24 fairness of Moran-Toala's otherwise well-tried case. 22 In the 1 event of inconsistent verdicts, to the extent they occurred 2 in this case, "[t]he most that can be said . . . is that the 3 verdict shows that either in the acquittal [on Count One] or 4 the conviction [on Count Two] the jury did not speak their 5 real conclusions, but that does not show that they were not 6 convinced of the defendant's guilt." 7 64-65 (internal quotation marks omitted). 8 permitting inconsistent verdicts calls into doubt only one 9 of the jury's verdicts -- which one we cannot say -- but not Powell, 469 U.S. at An instruction 10 both. 11 all of the jury's findings, we employ harmless error review. 12 Cf. United States v. Bunchan, 626 F.3d 29, 33-34 & n.2 (1st 13 Cir. 2010) (reviewing for plain error defendant's 14 unpreserved challenge to instruction that jurors "don't have 15 to follow my instructions anymore . . . . 16 door, and we can't tell whether or not you're doing what we 17 ask you to do," and declining to reach the question of 18 structural error). 19 Because the supplemental instruction did not infect 2. Harmless Error. [W]e close the Since the error in the charge 20 was not structural, we are required to review it for 21 harmlessness. 22 instructions de novo, reversing only where appellant can 23 show that, viewing the charge as a whole, there was a 24 prejudicial error." "We review a district court's jury Carr, 424 F.3d at 218 (citations and 23 1 internal quotation marks omitted). "An erroneous 2 instruction, unless harmless, requires a new trial." 3 (internal quotation marks omitted). 4 harmless only if it is "clear beyond a reasonable doubt that 5 a rational jury would have found the defendant guilty absent 6 the error." Id. Instructional error is Neder, 527 U.S. at 18. Harmless error review in this case is complicated 7 8 by the factual, if not legal, inconsistency in the jury's 9 verdicts. The very reason such verdicts are unreviewable in 10 and of themselves is because we could do no more than "try 11 to guess which of the inconsistent verdicts is the one the 12 jury really meant." 13 quotation marks omitted). 14 jury actually had in mind in order to seek to reconcile the 15 two verdicts: perhaps the jury found that Moran-Toala had 16 insufficient knowledge of the narcotics conspiracy to 17 support a conviction on Count One, in which case a properly 18 instructed jury likely would have also rejected the felony 19 enhancement. 20 Toala's intent to further the narcotics conspiracy by 21 misusing her CBP computer also proved her membership in the 22 narcotics conspiracy, but it did not wish to convict on such 23 a serious charge without evidence that she personally 24 imported or sold drugs; in that case, a properly instructed Acosta, 17 F.3d at 545 (internal We might speculate as to what the Or the jury might have found that Moran- 24 1 jury likely would have applied the felony enhancement. The 2 problem with either speculation, though, beyond the fact 3 that they are speculations, is that they do not account for 4 the jury's query: "Count 2: must the verdict in #4 be in 5 agreement with Count #1?" 6 the jury itself could not reconcile the verdicts on the two 7 counts and was seeking (and obtained) permission to render 8 its contemplated verdicts despite the inconsistency. This note strongly suggests that There is thus no serious doubt that the erroneous 9 10 instruction contributed to any inconsistency in the verdicts 11 inasmuch as it explicitly permitted them.5 12 unaware of the fact that the district court's instruction 13 ultimately resulted in a highly favorable verdict for Moran- 14 Toala, who was convicted of the less serious charge and 15 acquitted of the more serious one. 16 dearth of evidence of Moran-Toala's knowledge of the 17 Espinal-Polanco airport conspiracy, it is nevertheless 18 possible that a jury would have acquitted her of the 19 narcotics conspiracy and declined to apply the felony 20 enhancement had the supplemental instruction been correct 5 We are not But, in light of the Of course, the jury instruction also permitted the jury to return a verdict convicting Moran-Toala on the narcotics conspiracy charge, but declining to elevate the unlawful computer access conspiracy conviction from a misdemeanor to a felony. That the jury chose otherwise is to Moran-Taola's substantial benefit. 25 1 and informed the jury that inconsistent verdicts are 2 impermissible. 3 that it is clear beyond a reasonable doubt that a properly 4 instructed jury would have convicted Moran-Toala of felony- 5 level unlawful computer access conspiracy. 6 conviction on Count Two must be vacated and the case 7 remanded to the district court for retrial, should the 8 government be inclined to pursue the charge. II. 9 We therefore cannot say with any confidence Accordingly, the Rule 404(b) Evidence Although unnecessary to the disposition of this 10 11 appeal, we nevertheless address the question of the 12 propriety of the district court's admission of Moran-Toala's 13 Florida plea allocution under Rule 404(b). 14 light of the fact that the issue has been fully briefed and 15 argued, and for the benefit of the district court should the 16 unlawful computer access conspiracy charge be retried on 17 remand. 18 We do so in Rule 404(b)(1) of the Federal Rules of Evidence 19 provides that "[e]vidence of a crime, wrong, or other act is 20 not admissible to prove a person's character in order to 21 show that on a particular occasion the person acted in 22 accordance with the character." 23 however, be admissible "for another purpose, such as proving 24 motive, opportunity, intent, preparation, plan, knowledge, 26 Prior crime evidence may, 1 identity, absence of mistake, or lack of accident." 2 Evid. 404(b)(2). 3 approach, which admits all 'other act' evidence that does 4 not serve the sole purpose of showing the defendant's bad 5 character and that is neither overly prejudicial under Rule 6 403 nor irrelevant under Rule 402." 7 Curley, 639 F.3d 50, 56 (2d Cir. 2011) (citation omitted). 8 We review the district court's evidentiary ruling 9 Fed. R. This Circuit "follows the 'inclusionary' for abuse of discretion. United States v. United States v. McCallum, 584 10 F.3d 471, 474 (2d Cir. 2009). 11 review include whether: "(1) the prior crimes evidence was 12 'offered for a proper purpose'; (2) the evidence was 13 relevant to a disputed issue; (3) the probative value of the 14 evidence was substantially outweighed by its potential for 15 unfair prejudice pursuant to Rule 403; and (4) the court 16 administered an appropriate limiting instruction." 17 475 (quoting Huddleston v. United States, 485 U.S. 681, 691- 18 92 (1988)). 19 Factors relevant to our Id. at It is undisputed that the Florida plea allocution 20 was offered to show Moran-Toala's knowledge that her TECS 21 searches furthered the JFK Airport narcotics conspiracy -- 22 both a proper purpose under the Rule and a highly disputed 23 issue at trial. 24 could neutrally determine that she conducted inappropriate Instead, Moran-Toala objects that no jury 27 1 TECS searches, but not in furtherance of a narcotics 2 conspiracy, once it found out that she had done just that in 3 another narcotics conspiracy in Florida. 4 The Florida plea allocution was both highly 5 probative of Moran-Toala's knowledge of the New York 6 conspiracy and highly prejudicial, as the Florida conviction 7 is nearly identical to the New York charges. 8 recognized both the probative value of the proffered 9 evidence and the real problem of prejudice. The court The district 10 court initially reserved judgment on the government's Rule 11 404(b) motion, waiting first to review the other evidence 12 that was introduced at trial. 13 the probative value of the plea allocution, by noting that 14 the issue of Moran-Toala's knowledge was "very much at 15 play," and limiting its prejudicial effect, by pruning the 16 government's proffered evidence to a focused and brief 17 stipulation, that the court allowed the government to inform 18 the jury about the Florida conviction. 19 proper balancing process required under Rule 403, with the 20 district court engaging in a serious effort to minimize the 21 prejudicial effect of the Florida conviction on the jury. 22 Cf. id. at 477 (district court abused its discretion in 23 admitting evidence of prior conviction under Rule 404(b) 24 without conducting any Rule 403 balancing at all). It was only after weighing 28 This reflects the "Only 1 rarely -- and in extraordinarily compelling circumstances -- 2 will we, from the vista of a cold appellate record, reverse 3 a district court's on-the-spot judgment concerning the 4 relative weighing of probative value and unfair effect." 5 United States v. Awadallah, 436 F.3d 125, 134 (2d Cir. 2006) 6 (internal quotation marks omitted). 7 extraordinary case, and we find no abuse of discretion in 8 the district court's evidentiary ruling. CONCLUSION 9 10 This not such an The judgment of conviction is vacated, and the 11 case is remanded to the district court for further 12 proceedings. 29
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