United States v. Moran-Toala

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). The jury acquitted her of narcotics

21 conspiracy charges, however, after the district court

22 instructed the jury in effect that it was permitted to

23 return inconsistent verdicts. We conclude that this
 1 instruction was erroneous and that the error was not

2 harmless.

3 Vacated and remanded.

4 PATRICIA E. NOTOPOULOS (Jo Ann M.
5 Navickas, on the brief), Assistant
6 United States Attorneys, for Loretta
7 E. Lynch, United States Attorney for
8 the Eastern District of New York,
9 Brooklyn, NY, for Appellee.

10 FLORIAN MIEDEL, Law Office of
11 Florian Miedel, New York, NY, for
12 Defendant-Appellant.

13 SACK, Circuit Judge:

14 Although juries are supposed to render verdicts

15 that are consistent with one another, from time to time they

16 do not. When this happens, it is well established that a

17 criminal defendant cannot exploit any such inconsistency in

18 the jury's verdicts to secure a new trial. This appeal

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

1
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
 1 BACKGROUND

2 From February 2003 to October 2007, Defendant

3 Moran-Toala was employed as a Federal Customs and Border

4 Patrol ("CBP") officer at Hollywood International Airport in

5 Fort Lauderdale, Florida. She worked in a "Passenger

6 Analytical Unit," which required her to review flight

7 manifests to identify airline passengers who were suspected

8 of involvement in criminal activity. In order to do so,

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. CBP officers are prohibited from "browsing" the

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.

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. Law enforcement agents

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. Espinal

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. Polanco arranged for

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. CBP agents ultimately

17 seized six of Polanco and Espinal's shipments, two of which

18 are pertinent to Moran-Toala's case.

19 First, Espinal and Polanco arranged for a backpack

20 containing heroin and cocaine to be stashed on a February

21 11, 2006 Delta flight from the Dominican Republic to New

22 York. CBP agents seized the backpack before Espinal could

23 retrieve it. Espinal did not immediately realize that the

24 shipment had been intercepted. He told Polanco, wrongly as

4
 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.

4 The Dominican supplier became concerned about

5 Espinal's failure to retrieve the backpack, suspecting that

6 Espinal and Polanco had stolen the drugs. The supplier

7 demanded that Espinal and Polanco return the shipment or pay

8 him for the loss. To prove to the Dominican supplier that

9 they had not stolen the drugs, Espinal said that "his

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." Trial Transcript ("Trial

14 Tr.") at 248:17-249:5; Joint App'x at 329-30. On February

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.

18 Second, as a result of a wiretap, law enforcement

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. While they were

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. 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. According to her telephone

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 In addition, Espinal had an associate named Victor

19 Perez who smuggled money to the Dominican Republic at

20 Espinal's behest. Perez was planning to fly to the

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

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. Perez gave Espinal

5 his date of birth and social security number. On September

6 1, 2007, Moran-Toala conducted a TECS search using Perez's

7 personal information. The search did not unearth any

8 outstanding warrants or criminal history information.

9 Moran-Toala's phone records reflect two outgoing calls to

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. In a

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). Unlawful use of a computer is a

22 misdemeanor offense, but is subject to a felony enhancement

23 if "the offense was committed in furtherance of any criminal

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. She also admitted that when a

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. Moran-Toala was

18 sentenced to a term of 120 months' imprisonment for the

19 Florida conspiracy.

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. She admitted to

24 misusing her CBP computer, but asserted that she did so with

8
 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. Although the defense

8 conceded that the plea allocution fell within the ambit of

9 Rule 404(b), it objected to the admission of this evidence

10 on Rule 4033 prejudice grounds. The district court

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." Trial Tr. at 293:9-10; Joint App'x at

14 374. Ultimately, however, the district court decided to

15 allow the evidence to be admitted, noting that "knowledge

16 and scheme and intent [are] very much at play." Trial Tr.

17 at 515:24; Joint App'x at 595. Over the defense's objection

3
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 [I]t is agreed among the parties that as
4 part of the statement under oath during a
5 guilty plea in a different case on April
6 16th, 2010, before the Honorable James I.
7 Cohen, United States District Judge,
8 Southern District of Florida, the
9 defendant admitted the following.
10 In furtherance of a drug conspiracy that
11 began in approximately June 2006, between
12 herself, her sister Cindy Moran, and a
13 third individual, [a defendant in the
14 Florida case,] Elizabeth Moran-Toala
15 misused her work computer and ran the
16 names of people she knew entering the
17 United States from the Dominican Republic
18 carrying narcotics. Elizabeth Moran-
19 Toala scrolled down the manifest in order
20 to avoid detection, rather than simply
21 entering the courier's name.
22 [T]he purpose of those inquiries [was] to
23 ensure the couriers . . . would not
24 encounter[] any difficult[ies] at
25 Customs[.] [F]or her part in this
26 conspiracy, Elizabeth Moran-Toala was
27 paid $10,000.

28 Trial Tr. at 534:13-535:4; Joint App'x at 614-15. When the

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
 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 If you determine, in respect to count two
8 [conspiracy to exceed authorized computer
9 access], that the defendant is guilty of
10 that count, you must determine whether
11 the government has proved beyond a
12 reasonable doubt that Section
13 [1030(a)(2)(B)(ii)] -- that the offense
14 in that section was committed in
15 furtherance of a criminal act in
16 violation of the Constitution and laws of
17 the United States; namely, the conspiracy
18 to import narcotics as charged in count
19 one. It's linked to count one if you
20 find she is guilty.
21 The phrase in furtherance means with the
22 intent to help, advance, move forward,
23 promote or facilitate. The government
24 must therefore show that the defendant
25 engaged in the conduct of accessing the
26 United States Department of Homeland
27 Security computer in excess of
28 authorization, with the intent to
29 advance, move forward, promote or
30 facilitate the conspiracy charged in
31 count [one] about which I've already
32 instructed you.

33 Trial Tr. at 665:10-25; Joint App'x at 745. Neither party

34 objected to this instruction.

35 The district court provided the jury with a

36 verdict sheet containing various questions. Question 1

11
 1 asked the jury to report its verdict on Count One, the

2 narcotics conspiracy count. Question 2 asked the jury to

3 find the amounts of heroin and cocaine involved in the

4 narcotics conspiracy, if any. Question 3 asked the jury to

5 report its verdict on Count Two, for conspiracy to exceed

6 authorized computer access. Question 4 asked, "Was the

7 [unlawful computer use] conspiracy in furtherance of the

8 crime charged in Count One, namely, the conspiracy to import

9 a controlled substance?" 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?" Jury Note, June 28, 2011; Joint App'x at 799.

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. The district court shared the contents of the

12
 1 note with counsel and solicited their respective views. The

2 government argued that the answer should be "no." In the

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. Defense counsel urged the district court

8 to answer the jury's question affirmatively, foreclosing any

9 possibility of inconsistent verdicts.

10 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. The

16 court explained its change of heart as a reluctance "to

17 charge the government out of court." Trial Tr. at 700:16-

18 17; Joint App'x at 780.

19 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. Consistent with the district court's

22 supplemental instruction, the jury acquitted Moran-Toala of

23 the narcotics conspiracy, but convicted her of conspiring to

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. In a memorandum and order dated March 8, 2012,

8 the district court denied Moran-Toala's Rule 33 motion. The

9 court began by noting:

10 While there may be scenarios in which an
11 individual can act in furtherance of a
12 conspiracy without joining the
13 conspiracy, there is no view of the
14 evidence in this particular case that
15 would permit that conclusion. The
16 government's theory at trial was that
17 Moran–Toala would, at a co-conspirator's
18 request, periodically access confidential
19 information regarding narcotics seizures
20 and other information and pass it on to
21 the coconspirator. . . . By finding that
22 Moran–Toala committed the conspiracy
23 computer offense "in furtherance of the
24 crime charged in Count one," the jury
25 necessarily determined that she had
26 agreed with another -- her co-conspirator
27 on the computer charge -- to commit the
28 crime; that she had intentionally
29 advanced the narcotics conspiracy; and
30 that she had committed an overt act in
31 furtherance of the conspiracy. Put
32 simply, Moran–Toala could not have
33 intentionally misused her computer to
34 advance a narcotics conspiracy without
35 being a member of that conspiracy. Thus,
36 when the jury asked whether the special
37 verdict on the [felony] enhancement
38 needed to be "in agreement" with its

14
 1 verdict on count one, it was effectively
2 asking whether the verdict had to be
3 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). Nevertheless,

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

10 rule that such verdicts are unreviewable." Id., 2012 WL

11 748612, at *4, 2012 U.S. Dist. LEXIS 30893, at *9.

12 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. Moran-Toala now challenges the supplemental

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 DISCUSSION

22 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 . . . ."). This appeal is therefore

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

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. On the face of it, it does seem hopeless

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 But Moran-Toala does

4
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. It has long been the law that "[c]onsistency

3 in the verdict is not necessary." Dunn v. United States,

4 284 U.S. 390, 393 (1932). "[T]he jury, though presumed to

5 follow the instructions of the trial court, may make its

6 ultimate decisions 'for impermissible reasons,' such as

7 'mistake, compromise, or lenity.'" United States v. Acosta,

8 17 F.3d 538, 545 (2d Cir. 1994) (quoting United States v.

9 Powell, 469 U.S. 57, 63, 65 (1984)). 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." Powell, 469 U.S. at 65.

17 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 A. The District Court's Supplemental Jury
6 Instruction was Erroneous

7 "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). Here, the court

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. This instruction reflected the considerable

19 overlap in the legal elements of the two conspiracy charges,

20 and the facts applicable to each. The jury clearly

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

18
 1 narcotics conspiracy, or vice versa. We can think of no

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. The district court, in

8 response, blessed the jury's clear desire to render verdicts

9 it considered inconsistent, or not "in agreement," with the

10 law and the evidence.

11 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. The jury's act would

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
 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.

6 In Thomas, "[w]e categorically reject[ed] the idea

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. See United States v. Edwards, 101 F.3d 17, 19 (2d

14 Cir. 1996) (per curiam). Nor have we faulted a district

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. United States v. Carr, 424 F.3d 213, 219-

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."). Thus "the

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.

20
 1 We conclude that, in its very brief and

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. Such an "explicit instruction . . .

7 conveys an implied approval that runs the risk of degrading

8 the legal structure . . . ." United States v. Dougherty,

9 473 F.2d 1113, 1137 (D.C. Cir. 1972). Thus, the district

10 court's instruction misled the jury as to its duty to follow

11 the law.

12 B. Nature of the Error

13 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.'" United States v. Feliciano, 223 F.3d 102, 111

21 (2d Cir. 2000) (quoting Arizona v. Fulminante, 499 U.S. 279,

22 307-10 (1991)). "Errors are properly categorized as

23 structural only if they so fundamentally undermine the

24 fairness or the validity of the trial that they require

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. Thus, as

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.'" Hedgpeth

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 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. In the

22
 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." Powell, 469 U.S. at

7 64-65 (internal quotation marks omitted). An instruction

8 permitting inconsistent verdicts calls into doubt only one

9 of the jury's verdicts -- which one we cannot say -- but not

10 both. Because the supplemental instruction did not infect

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 . . . . [W]e close the

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 2. Harmless Error. Since the error in the charge

20 was not structural, we are required to review it for

21 harmlessness. "We review a district court's jury

22 instructions de novo, reversing only where appellant can

23 show that, viewing the charge as a whole, there was a

24 prejudicial error." Carr, 424 F.3d at 218 (citations and

23
 1 internal quotation marks omitted). "An erroneous

2 instruction, unless harmless, requires a new trial." Id.

3 (internal quotation marks omitted). Instructional error is

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." Neder, 527 U.S. at 18.

7 Harmless error review in this case is complicated

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." Acosta, 17 F.3d at 545 (internal

13 quotation marks omitted). We might speculate as to what the

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. Or the jury might have found that Moran-

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

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?" This note strongly suggests that

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.

9 There is thus no serious doubt that the erroneous

10 instruction contributed to any inconsistency in the verdicts

11 inasmuch as it explicitly permitted them.5 We are not

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. But, in light of the

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
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. We therefore cannot say with any confidence

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. Accordingly, the

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.

9 II. Rule 404(b) Evidence

10 Although unnecessary to the disposition of this

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). We do so in

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 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." Prior crime evidence may,

23 however, be admissible "for another purpose, such as proving

24 motive, opportunity, intent, preparation, plan, knowledge,

26
 1 identity, absence of mistake, or lack of accident." Fed. R.

2 Evid. 404(b)(2). This Circuit "follows the 'inclusionary'

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." United States v.

7 Curley, 639 F.3d 50, 56 (2d Cir. 2011) (citation omitted).

8 We review the district court's evidentiary ruling

9 for abuse of discretion. United States v. McCallum, 584

10 F.3d 471, 474 (2d Cir. 2009). Factors relevant to our

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." Id. at

17 475 (quoting Huddleston v. United States, 485 U.S. 681, 691-

18 92 (1988)).

19 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. Instead, Moran-Toala objects that no jury

24 could neutrally determine that she conducted inappropriate

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. The court

8 recognized both the probative value of the proffered

9 evidence and the real problem of prejudice. 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. It was only after weighing

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. This reflects the

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). "Only

28
 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). This not such an

7 extraordinary case, and we find no abuse of discretion in

8 the district court's evidentiary ruling.

9 CONCLUSION

10 The judgment of conviction is vacated, and the

11 case is remanded to the district court for further

12 proceedings.

29