On Informing the Jury of Jury Nullification and Sentencing Consequences (12/21/19; 12/22/19)

In United States v. Manzano, ___ F.3d ___ (2d Cir. 2019), here (2d Cir.) or here (Google Scholar), a nontax case, the Second Circuit addressed issues of jury nullification and instructing the jury as to the sentencing consequences of guilty verdicts.  Those are big issues that surface sometimes in nontax crimes cases but rarely in tax crimes cases.  They could surface in tax crimes cases and tax crimes practitioners should be aware of the issue so that they can “surface” the issues when they need to.

In Manzano, the Court’s unofficial summary is:

On the eve of trial, the United States District Court for the District of Connecticut (Underhill, Chief Judge) ruled that Respondent – who is charged with, [*2] inter alia, production of child pornography, an offense punishable by a mandatory minimum term of fifteen years’ imprisonment – could argue jury nullification at trial.  The district court also reserved decision on whether evidence of sentencing consequences would be admissible.  The government now petitions for a writ of mandamus directing the district court to preclude defense counsel from arguing nullification and to exclude any evidence of sentencing consequences.  We hold that the conditions for mandamus relief are satisfied with respect to the district court’s nullification ruling, but not with respect to the admissibility of evidence of sentencing consequences.  Thus, we grant in part and deny in part the petition. 

So, let’s start with the concept of jury nullification.  As I understand in broad strokes and without nuance, the concept of jury nullification is is that a jury, normally in our system serving solely the role of fact finder (did the defendant factually do the acts that the law describes as a crime), can choose not to return a verdict of guilty because it has concerns about the law or the application of the law to the case at hand.  The jury believes that the prescribed punishment for the crime does not fit the culpability of the defendant.  (Or as the more humane Mikado says (Gilbert & Sullivan, here) the punishment should fit the crime.) More nuanced discussion can be found in Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine (Cato Institute 2014), here.  A reasonable summary can be found in Wikipedia’s entry on Jury Nullification here.

Moving to Manzano, the relevant facts are succinctly stated by the Court (Slip Op. 4):

In October 2016, law enforcement officers in Connecticut received information that a 15-year-old girl, M.M., had been in a sexual relationship with Yehudi Manzano, the 31-one-year-old landlord of the building where she lived.   During the ensuing state investigation, officers searched Manzano’s cell phone pursuant to a warrant and discovered a video of M.M. and Manzano engaged in sexually explicit conduct. 

M.M. knew that Manzano was recording the video at the time, and Manzano did not threaten her or force her to engage in the sexual conduct.  Nonetheless, M.M. was 15 years old when the video was recorded and therefore was incapable [*5] of consenting to sexual conduct as a matter of law.  See Conn. Gen. Stat. § 53a-71(a)(1).  Although Manzano did not distribute the video, he uploaded it, using internet servers located outside of Connecticut, to his personal Google Photos folder.

The issue presented on those facts is whether the judge could properly instruct the jury as to jury nullification given the harsh consequences of punishment that the law imposed on the factual conduct.  The relevant trial level proceedings are (Slip Op. 7-8):

On October 29, 2018, the day the trial was scheduled to begin, the district court held another pretrial conference at which it granted Manzano’s motion to permit counsel to argue jury nullification, while reserving decision on the admissibility of evidence related to sentencing consequences.   In explaining its ruling, the district court began by observing that “[t]his is a shocking case . . . that calls for jury nullification.” n2  Doc. No. 60 at 34.  The court then ruled:
   n2  More fully, the district court explained: 
This is a shocking case.  This is a case that calls for jury nullification. . . .  I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government. . . .    I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct or the lack or seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I’m not sure. 
Doc. No. 60 at 34. 

[T]he law precludes me from charging the jury, the law precludes me from encouraging the jury, and I don’t intend to do that. But if evidence comes in about the length of sentence, or if [defense counsel] chooses to argue, I do not feel that I can preclude that.  I don’t feel I’m required to preclude that.  And I think justice requires that I permit that.  So it’s not going to come from me, but I think justice cannot be done here if the jury is not informed, perhaps by [defense counsel],  that that’s the consequence here. 

[*8] 

Id. at 34–35.  The district court memorialized its ruling in a minute entry stating that “[Manzano’s] motion is granted to the extent it seeks permission to argue for
jury nullification.”  Doc. No. 58.

The Government sought mandamus.  The Second Circuit decision in Manzano followed.

So, let’s look at the opinion.

The Court starts with a discussion of the requirements for mandamus.  One of the first cases the court cites is Stein v. KPMG, LLP, 486 F.3d 753, 760 (2d Cir. 2007), here, a case in which I was involved.  But rather than go into war stories, I will just summarize that the requirements for mandamus are strict indeed (Slip Op.9):

“The writ is, of course, to be used sparingly.”  Stein v. KPMG, LLP, 486 F.3d 753, 760 (2d Cir. 2007).  Thus, three demanding conditions must be satisfied before the writ may issue:   (1) the petitioner must “have no other adequate means to attain the relief [it] desires;” (2) the petitioner must satisfy “the burden of showing that [its] right to issuance of the writ is clear and indisputable;” and (3) the issuing court “must be satisfied that the writ is appropriate under the circumstances.”   Cheney, 542 U.S. at 380–81 (internal quotation marks and citations omitted).    

The Court then addresses the issue of whether there was no other adequate means to obtain the relief the Government desires.  By amicus brief filed on behalf of the district court judge (Judge Underhill), Judge Underhill argued that the relief was not certain to be needed because the ruling was contingent upon subsequent rulings – specifically whether the judge would instruct the jury as to sentencing consequences of the jury’s factual finding of guilt.  Manzano had not made his request for a jury nullification instruction contingent upon the jury being instructed as to the sentencing consequences of a guilty verdict.  The district court injected that issue sua sponte.  The Second Circuit found that, based on the trajectory of trial level events, this element required for mandamus relief was met.

The next issue addressed, the more interesting one, was whether the Government had a clear and indisputable right to preclude the instruction about jury nullification.  The standard of review was abuse of discretion, but focused on the key issue discussed in this blog.  Here is the relevant discussion (emphasis supplied, and cleaned up):

In this case, we are left with the firm conviction that the district court based its jury nullification ruling on an erroneous view of the law.  Our case law is clear:  it is not the proper role of courts to encourage nullification.  Rather, the power of juries to nullify or exercise a power of lenity is just that – a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.

Here, the district court in fact recognized that our case law precluded it from encouraging the jury to nullify, but then proceeded to draw an arbitrary distinction between encouraging the jury via jury instructions – which it properly deemed impermissible – and granting defense counsel’s motion to argue nullification.  This distinction is unsupported by our case law.  

In Thomas, we concluded that “a presiding judge possesses both the responsibility and the authority to dismiss a juror whose refusal or unwillingness to follow the applicable law becomes known to the judge during the course of [*18] trial.”  In reaching that conclusion, we explained in no uncertain terms that trial courts have the duty to forestall or prevent jury nullification.  Our reasoning was thus not limited to the specific facts at issue.  Instead, taking the occasion to restate some basic principles regarding the character of our jury system, we categorically rejected the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.  We have since applied the principles set forth in Thomas beyond the specific circumstances of that case, and we have no hesitation doing so again here. 

Applying the principles enunciated in Thomas, we emphatically reject the rule, advanced by Judge Underhill as amicus, that district courts are free to permit
jury nullification arguments whenever they feel justice so requires – in other words, in any case in which the court strongly disagrees with the government’s charging decisions and the attendant sentencing consequences.   As a practical matter, there is no meaningful difference between a court’s knowing failure to remove a juror intent on nullification, a court’s instruction to the jury that [*19] encourages nullification, and a court’s ruling that affirmatively permits counsel to argue nullification.  In each of these situations, the conduct in question subverts the jury’s solemn duty to “take the law from the court, and apply that law to the facts of the case as they find them to be from the evidence.”  Sparf v. United States, 156 U.S. 51, 102 (1895); see United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983) (“We therefore join with those courts which hold that defense counsel may not argue jury nullification during closing argument.”); see also, e.g., United States v. Gonzalez-Perez, 778 F.3d 3, 18–19 (1st Cir. 2015). District courts have a duty to forestall or prevent such conduct, see Thomas, 116 F.3d at 616, and the district court in this case abdicated its duty by ruling that defense counsel could argue jury nullification.5
  n5  Indeed, Judge Underhill’s statements that he thought this case “calls for jury nullification,” and that “justice cannot be done here if the jury is not informed, perhaps by [defense counsel],” of the sentencing consequences, Doc. No. 60 at 34–35, suggest not simply a ruling that actively permits nullification, but literal encouragement of jury nullification. 

  We have no doubt that in granting Manzano’s motion to argue for jury nullification, Judge Underhill was acting under the sincere belief that his ruling was consistent with, and perhaps mandated by, the ends of justice.  Nevertheless, individual judges, cloaked with the authority granted by Article III of the Constitution, are not at liberty to impose their personal view of a just result in the [*20] face of a contrary rule of law.  Contrary to the dissent’s suggestion, the fact that we might disagree with the government’s charging decision, or lack a full understanding of that decision, provides no basis for holding this matter in abeyance and remanding so that the prosecutors can “revisit their charging decision” or “provide information as to why they believed their decision was appropriate.”  Subject to narrow exceptions not implicated here, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his [*21] discretion. 

Finally, the district court’s ruling may not be upheld on the basis of its supervisory power to oversee the administration of criminal justice within federal courts. As the Supreme Court has held, “the supervisory power does not extend so far” as to “confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing.”  United States v. Payner, 447 U.S. 727, 737 (1980). Clearly, then, the supervisory power does not authorize a court to grant a defendant’s request to argue that the jury should disregard the law. For these reasons, we are firmly convinced that the district court’s jury nullification ruling was based on an erroneous view of the law. n6  Accordingly, the [*22] government has a clear and indisputable right to a writ of mandamus directing the district court to deny defense counsel’s request for leave to argue nullification.
   n6  In so concluding, we have no occasion to pass on whether, or to what extent, a district court must sua sponte police a lawyer’s arguments to the jury that sound in nullification.

So, the Court granted the writ of mandamus on the issue of instructing the jury on jury nullification.

The Court then addressed the related issue of whether the jury could be instructed as to the mandatory minimum sentencing consequences of a guilty verdict (Slip Op. 23 ff).  The Court basically held that the record was not sufficiently clear as to whether and how this issue would arise as the case moved to the point of trial where the judge could then assess whether evidence of sentencing consequences could be admitted or instructed to the jury.  But the Court cautioned that, in the event its holding were misunderstood (Slip Op. 29-30, cleaned up):

First, if the district court finds that Manzano is indeed seeking to introduce evidence of sentencing consequences solely for the purpose of encouraging nullification, the court must exclude that evidence as irrelevant.  Second, by concluding that the demanding mandamus standard has not been satisfied on the pretrial record here, we do not thereby endorse a rule that evidence of sentencing consequences is generally admissible under Rule 403.  

In this context, a district court’s discretion should be guided by the special considerations referenced in Shannon – namely, that evidence of sentencing consequences “invites [jurors] to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion.”      

At this time, however, we do not undertake to define the rare circumstances in which evidence of sentencing consequences might pass muster under Rule 403.   Nor do we offer any opinion on whether those circumstances might present themselves during the trial in this case.  Rather, we simply hold that, on the pretrial record here, the government has failed to demonstrate its clear and indisputable right to the writ as required by the second Cheney condition.   

The Court thus granted mandamus on the issue of denying a jury instruction on jury nullification but punted on the issue of whether the jury could be instructed on the mandatory sentence involved (which might incite the jury to nullify on its own consideration).

The dissent by Judge Barrington D. Parker is, in my view, powerful.  I quote only the opening of the dissent and urge those interested to read it.  Here is the quote (emphasis supplied):

We are fortunate that the prosecutors in this Circuit nearly always bring a high degree of professionalism, good judgment, and common sense to bear in the exercise of their responsibilities. This case presents the unusual circumstance where a conscientious jurist is confronted with a charging decision that, in his considered judgment,reflects an abuse of prosecutorial power. Charging decisions are, of course, by and large the exclusive province of prosecutors.    

There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent. The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.  

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted. But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. Federal [*2] courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts. They should use these powers “to see that the waters of justice are not polluted” and “to protect the integrity of the federal courts.”  Their supervisory powers are not restricted to the protection of explicit constitutional rights.  The powers exist in order to maintain respect for law and to promote confidence in the administration of justice.  The supervisory powers should be sparingly exercised. Judges are not, of course, free to disregard the limitations of the law they are charged with enforcing under the guise of exercising supervisory powers or at other times. But since Payner, we have recognized that within their supervisory powers, courts should not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standards of fairness.  [*3] This requirement applies with particular force in contexts such as charging and sentencing, especially those involving mandatory minimum sentences, where the Government plays an often decisive role. 

Whether Judge Underhill went too far is debatable. But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification. I concur to the extent that the majority denies a writ directing the District Court to exclude at trial evidence of sentencing  consequences. 

Related documents or discussions are:

• Amicus Brief filed on behalf of Judge Underhill, here.
• Doug Berman, Split Second Circuit panel grants feds request for mandamus to preclude a jury nullification instruction in child porn case involving 15-year mandatory minimum (Sentencing Law and Policy Blog 12/19/19), here.
• Edmund H. Mahony, U.S. appeals court rebukes federal judge in Connecticut who endorsed jury nullification in the trial of a sex offender (Hartford Courant 12/18/19), here.

JAT Comments.

1.  The suggestion may be that, in some circumstances, it may be appropriate that the consequences of sentencing come in as evidence.  In any event, the standard under our practice is that the jury is not informed as to the sentencing consequences of their fact finding of guilt based on the law instructions given by the judge.  

2.  Of course, as readers of this blog know the statutorily prescribed maximum sentences are very different than the sentencings that a court may impose either under the Sentencing Guidelines or the Court's Booker discretion.  Thus, when the Government charges, the Government's press release and report to the court is the maximum sentencing allowed.  For example, for four counts of a 5-year felony (e.g., tax evasion, § 7201, or failure to collect or pay over, § 7202), the maximum sentence is 20 years (with stacking sentences based on counts of conviction).  That is what the press release will say.  And, if the jury convicts on all counts, that is the maximum incarceration the defendant can suffer.  Since at any time relevant to a jury's consideration, the sentencing factors under the Guidelines or Booker discretion have not been determined, if the jury is advised of anything about the potential sentencing consequences, the jury presumably must be told the maximum sentencing allowed -- in the example 20 years.  With that information, a jury might be inclined to, for example, compromise for a sentence it thinks reasonable (e.g., 2 counts permitting 10 years, rather than 4 counts permitting 20 years), which would be a form of moderated jury nullification.  (I set aside here that in imposing sentence a judge may (and should) consider even acquitted counts if convinced by a preponderance of the evidence, and thus could impose sentence considering the acquitted counts.)

3.  (added 12/21/19)  If the jury is given a more nuanced instruction other than maximums for the charged counts as to what the actual sentence might be, then the court presumably would instruct the jury that, although the maximum exposure is 20 years in the example, under the Sentencing Guidelines and sentencing practices under Booker, the sentence in the prototypical multi-count tax case is likely to be significantly less than 20 years.  Although the amount of the tax loss for sentencing purposes is not determined until after conviction, a judge might be able to give an example with a $1,000,000 tax loss allocated equally each of the four count years (assuming that is consistent with the evidence in the case in chief), which under the Guidelines would produce a Guidelines sentencing range of 33-41 months (assuming no failure to report income from criminal activity, no sophisticated means, no acceptance of responsibility and no other potential adjustments to the Guideline levels going into the Sentencing Table).  And, presumably for the information to be meaningful, the Court would have to advise the jury that, even if they only convicted for a single count, if the judge is persuaded by a preponderance of the evidence that the defendant attempted evasion for all years, all of the $1,000,000 tax loss for both convicted and acquitted counts would be counted for sentencing to produce the same sentencing range well within the single count of conviction for one count (5 years).  So, a jury attempting partial jury nullification by acquitting on three of the four counts would not achieve anything in terms of the punishment.  All of this is to say that for a judge to instruct the jury on sentencing consequences for its consideration on guilt or innocence would be a mess.  (Of course, if there is a onerous minimum mandatory as in Manzano, a meaningful jury instruction  on sentencing consequences would be far easier; but minimum mandatories are not prescribed for tax crimes.)

4.  Still, in some cases, I suppose counsel should argue for either jury instructions on jury nullification or, perhaps its proxy, the maximum sentencing for the charged counts submitted to the jury.

5.  Judge Parker's dissent uses the Steuben Glass metaphor in describing the trial judge's role.  This reminds me of the famous potted plant response that Brendan Sullivan, counsel for Oliver North, made in the Iran Contra Congressional hearing.  See Wikipedia entry on Brendan Sullivan, here.

6.  Finally, readers should consider the broad charging discretion prosecutors have in the federal system and the fact that the discretion can be exercised in an unfair way.