United States v. Frank Nucera, Jr. ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2115
UNITED STATES OF AMERICA
v.
FRANK NUCERA, JR.,
Appellant
_____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(District Court No.: 1-17-cr-00532-001)
District Judge: Hon. Robert B. Kugler
_____________________________________
Argued November 7, 2022
(Filed May 5, 2023)
Before: JORDAN, SCIRICA, and RENDELL, Circuit
Judges.
Rocco C. Cipparone, Jr.,Esq. [Argued]
Rocco C. Cipparone, Jr.,
Law Offices
157 Bridgeton Pike
Suite 200-320
Mullica Hill, NJ 08062
Counsel for Appellant
Sabrina G. Comizzoli, Esq. [Argued]
Mark E. Coyne, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellees
_________
OPINION OF THE COURT
_________
RENDELL, Circuit Judge.
Trial evidence often divides jurors. In a trial about race
with jurors of different races, that division can be explosive.
Frank Nucera, Jr. says those divisions ran so deep in his trial
that they tainted the verdict, and he seeks a new trial or an
evidentiary hearing to probe what happened. To support his
claim, Nucera offers only post-verdict affidavits from jurors
who say they experienced racial vitriol, intimidation, and other
misconduct that occurred during the jury deliberations.
2
When parties challenge a verdict, Federal Rule of
Evidence 606(b) bars a court from considering a juror’s
statement or affidavit unless it satisfies either an exception in
the Rule or a constitutional exception created by the Supreme
Court in Peña-Rodriguez v. Colorado, 580 U.S. 206 (2017),
for evidence of racial bias. But the latter exception is narrow
and specific: it requires a clear statement that a juror voted for
conviction based on racial animus toward, or stereotypes
about, the defendant.
Nucera was charged with committing a hate crime,
depriving another of his civil rights, and making false
statements to the FBI, all associated with actions he took as a
police officer arresting a man named Timothy Stroye. His
evidence of purported juror misconduct shows heated
deliberations with racial tensions playing a major role.
Credibility determinations were crucial, and jurors divided
deeply over whom and what to believe. But none of his
evidence satisfies the exceptions in Rule 606(b). Nor does it
show that what happened here fits the exception in Peña-
Rodriguez. Lacking the clear statement that Peña-Rodriguez
requires, Nucera urges that we should widen the exception to
include the conduct here. That we cannot do. So we will affirm
the District Court’s denial of Nucera’s motion for a new trial,
and an evidentiary hearing, based on juror misconduct.
We will also affirm the District Court’s ruling that
limited Nucera’s use of the victim’s out-of-court statement and
3
the Court’s later instructions to the jury about unanimity.1 But
we agree with Nucera that the District Court erred in
sentencing him, so we will vacate the District Court’s
sentencing order and remand for further proceedings consistent
with this opinion.
I. NUCERA ’S TRIAL
A. Jury Selection
When the trial began, the District Court conducted voir
dire of potential jurors and briefly described some of the
evidence jurors would hear in the case. Jurors would “hear
testimony that the defendant Mr. Nucera used racial epithets
[that] included the N-word.” App. 149. And they would hear
Nucera “allegedly used excessive force” against a Black man
named Timothy Stroye during Stroye’s arrest because Nucera
was “racially motivated” to do so. App. 149. So the District
Court stressed the need for jurors to decouple “[Nucera’s]
use of . . . the racial epithets” from the allegations of
“excessive force [and] racial motivation” because Nucera’s
bad language was not “in and of itself a crime.” App. 149–50.
On the second day of jury selection, the District Court
and the parties questioned Pamela Richardson, a Black woman
and former pharmaceutical sales rep who retired because of a
long-term disability. Like other prospective jurors, Richardson
1
As we discuss below, the District Court excluded the
statement itself but allowed Nucera to allude to certain facts it
contained without attributing it to any specific individual.
4
had provided over 100 written responses to a questionnaire
from the parties that explored various subjects, including her
personal experiences with racism, her feelings about members
of law enforcement, and her ability to be impartial.
The responses revealed that Richardson had a “relative
or close friend” who had been “charged with [a] crime or been
the subject of [an] investigation[.]” App. 134. But she denied
that the matter would “affect [her] ability to be fair and
impartial” or “otherwise make it difficult for [her] to sit as a
juror in [the] case.” App. 134. Richardson also responded
“yes” to a question which asked if she believed someone who
uses “racially charged derogatory words” was “inclined to act
with physical aggression as well.” App. 141. But under
questioning by the Court and counsel, she explained that
people in a professional setting would stop to think “oh, my
pension, my kids, my house, am I willing to put that on the line
to become violent, and most [of those] people [would not].”
App. 155.
Lastly, she described incidents involving her sons being
stopped by police, but she denied holding a “grudge” against
the police for what happened. App. 152. She then explained the
complexities of how she had to interpret what her sons told her
based on their personalities, their ages, and her relationship
with them. And when the District Court asked if the incidents
would affect her view of the evidence, Richardson said they
would not. The District Court seated Richardson without
objection.
5
B. The Trial Evidence
The Government’s case against Nucera centered on his
alleged assault of Stroye, during an arrest. A grand jury
returned an indictment charging Nucera with three offenses:
one count of committing a hate crime, in violation of 18 U.S.C.
§ 249(a)(1), another count of depriving a person of civil rights,
in violation of 18 U.S.C. § 242, and a third count for later
making a false statement to the FBI about what happened, in
violation of 18 U.S.C. § 1001(a)(2).
Nucera’s trial began on September 20, 2019. Jurors
learned that he served as both the Chief of the Bordentown
Township Police Department (BTPD) and the Township’s
Business Administrator. On September 1, 2016, officers under
Nucera’s command responded to a local hotel manager’s
complaint that Timothy Stroye, a Black man, was staying in a
room he had not paid for and was using the swimming pool.
The jury heard evidence from Captain Shawn Mount that he
and Detective Sergeant Salvatore Guido arrived first,
confronting Stroye and his girlfriend on the first floor. Ignoring
commands to stop for questioning, both Stroye and his
girlfriend used a nearby stairwell to go up to the second floor.
A short time later in the second floor hallway, Mount and
Stroye soon found themselves locked in combat for several
minutes before Stroye finally went to the ground, just as
backup officers from BTPD and other nearby departments
came to help Mount make the arrest.
When the dust settled, officers patted Stroye down,
handcuffed him, and led him to the nearest stairway. Sergeant
6
Nathan Roohr testified that he stood behind Stroye when, a
short time later, Nucera approached from behind, “lunged his
hand forward,” grabbed Stroye’s head “like a basketball and
slammed it into the metal doorjamb” separating the hallway
from the stairwell. Supp. App. 266–67. Roohr said the impact
was so hard that it made a “loud thud.” Supp. App. 267.
Guido had a different vantage point. He testified that he
first took Stroye’s girlfriend into custody, then he led Stroye
out of the hallway. Guido put the handcuffed Stroye in “an
escort position” by “linking up” his left arm and Stroye’s right
arm so the two could enter the stairway together. Supp. App.
777–78. Guido remembered that Stroye was agitated and
spewing profanities but posed no physical threat to anyone.
Stroye “hesitated” at the entrance, so Guido “[ga]ve him a
little, little nudge to get through the door[.]” Supp. App. 779.
Guido testified that, at that moment, he felt a “force from
behind” and then saw “Chief Nucera’s arm in [his] peripheral
vision . . . pushing the back of Mr. Stroye through the door.”
Supp. App. 779.
Guido testified that the doorway had limited space, so
the force Nucera used was enough to cause him and Stroye to
strike opposite sides of the doorway with their bodies. And
even though Nucera appeared only in his peripheral vision,
Guido testified that he knew Chief Nucera was the instigator
because he and Nucera were the only officers on the scene in
plain clothes, and he recognized the distinctive peach color of
Nucera’s shirt. Guido presumed that Nucera pushed Stroye
“because . . . he wasn’t moving fast enough,” but he described
7
the act as “embarrassing” and noted that “it wasn’t needed at
all.” Supp. App. 779.
After the incident, Roohr returned to the police station
with Nucera and used his cell phone to record what Nucera had
to say. The recording captured Nucera using venomous and
racist language about the Black people the BTPD had
encountered:
I’m fucking tired of them man. I’ll
tell you what, it’s gonna get to the
point where I could shoot one of
these motherfuckers. And that
nigger bitch lady [referring to
Stroye’s girlfriend’s aunt], she
almost got it.
****
[After learning Stroye, his
girlfriend, and her aunt were from
Trenton] Stay the fuck out of
Bordentown. . . . It would have
been nice if that fucking [police]
dog could have come up. ‘Cause
they would have stopped, put
down.
****
That dog, that dog will stop
anything right then and there.
[Nucera makes barking noises.]
8
I’m telling you. You’d have seen
two fucking niggers stop dead in
their tracks. [Nucera laughs.] I
love that when they do that. I just
love that.
Supp. App. 1335, 1337. The jury also heard a recording in
which Nucera called someone a “[f]ucking little, fucking
nigger,” Supp. App. 1342, which Roohr testified was a
reference to Stroye, Roohr filed an official report that did not
refer to the alleged assault.2 But he later reported the incident
to the head of the BTPD’s Internal Affairs unit, Brian Pesce.
A few weeks later, Roohr took the same information to FBI
Agent Jacob Archer, whom he knew personally and
professionally for several years. Based on Roohr’s evidence,
the FBI launched an investigation and questioned Nucera in an
interview that agents recorded without his knowledge. During
the interview, which the Government played for the jury,
Nucera denied ever touching Stroye, let alone slamming his
head into the doorjamb.
Roohr also testified that Nucera had often used racial
epithets aimed at Black people. For example, nearly a year
before the incident, Nucera told him “[t]hese niggers are just
like ISIS, they have no value. They should line them all up and
mow them down. I would like to be on the firing squad.” Supp.
App. 280–81. And jurors heard another audio recording where
Nucera explained to Roohr, a K-9 handler, how to use his
2
But Roohr testified that fear of retaliation led him to withhold
the details of Nucera’s assault from his police report.
9
police dog to intimidate Black people—whom Nucera called
“fucking moulies.” Supp. App. 305–06, 1343–46.
Nucera offered his own evidence to challenge several
aspects of the Government’s case. For example, he presented
evidence that no other officers in close enough proximity heard
a loud thud. Of the nearly four dozen witnesses interviewed by
the FBI, only Roohr said he heard the sound. And none of the
other interviewed witnesses saw Nucera touch Stroye,
including the two other police officers at the scene. Nucera also
exposed inconsistencies between Roohr’s testimony and what
Roohr told the grand jury about how the touching occurred,
including his uncertainty about which hand Nucera used.
Likewise, Nucera offered evidence that Guido’s story had
changed several times, ultimately forcing him to all but admit
that he had no independent recollection of seeing Nucera push
Stroye.
Nucera even challenged the basic facts of the assault
and where he was when it happened. He drew testimony from
Roohr that he (Roohr) had told the grand jury Guido was the
one who gave Stroye a “hard push” after Stroye stopped in
front of the second-floor doorway. Supp. App. 386. He also got
Roohr to admit that Stroye was “passively resisting” Guido by
stopping as he did. Supp. App. 386–87. And he obtained
testimony from Mount that Nucera remained by his side for the
longest time of anyone at the scene, eventually insisting that
Mount go to the hospital.
10
Having challenged Roohr’s version of events, he also
highlighted Roohr’s credibility problems. Roohr deleted
several recordings aside from the one capturing Nucera’s racial
tirade after the incident. The evidence also suggested Roohr
had an axe to grind with Nucera over his leadership of the
department, including how he distributed opportunities to earn
overtime pay.And Roohr took his allegations to FBI Special
Agent Archer despite knowing the two men “mutually
disliked” one another after Archer had “unseated [Nucera] as a
fire commissioner in Bordentown Township[.]” Supp. App.
569.
Finally, Nucera challenged the FBI’s conduct. On cross-
examination, he got the FBI’s witness to admit that at least one
person told him the incident happened at a different location
than Roohr and Guido claimed, and it involved a person not
matching Nucera’s description. He also cast doubt on the way
the FBI treated him. Agents gave him no notice of the
interview, nor did they reveal it was being recorded. Still, he
voluntarily spoke with agents for about an hour and his
responses to their questions corroborated what Officers Nagle
and Mount said during FBI supervised recordings Roohr made
during the investigation. He also offered evidence that, unlike
Roohr, he made no efforts to destroy or conceal information
and even offered to have Pesce give the FBI any materials they
sought.
II. ALLEGED JUROR M ISCONDUCT
Nucera focuses much of his juror misconduct claim on
the deliberations, and he uses statements from jurors to support
11
it. Before reviewing what happened in the deliberations, and to
frame our analysis, we summarize key limits on a court’s
ability to consider the type of evidence Nucera offers when
seeking a new trial. In short, one rule of evidence and two
Supreme Court cases control the outcome. First, Federal Rule
of Evidence 606(b) limits the evidence from a juror that courts
may consider when used to challenge a verdict:
(1) Prohibited Testimony or Other
Evidence. During an inquiry into
the validity of a verdict or
indictment, a juror may not testify
about any statement made or
incident that occurred during the
jury’s deliberations; the effect of
anything on that juror’s or another
juror’s vote; or any juror’s mental
processes concerning the verdict
or indictment. The court may not
receive a juror’s affidavit or
evidence of a juror’s statement on
these matters.
(2) Exceptions. A juror may testify
about whether:
(A) extraneous prejudicial
information was improperly
brought to the jury’s attention;
(B) an outside influence was
improperly brought to bear on any
juror; or
12
(C) a mistake was made in entering
the verdict on the verdict form.
Fed. R. Evid. 606(b). And two recent Supreme Court cases
impose added constraints.3 First, the Court held that “Rule
606(b) precludes a party seeking a new trial from using one
juror’s affidavit of what another juror said in deliberations to
demonstrate the other juror’s dishonesty during voir dire.”
Warger v. Shauers, 574 U.S. 40, 42 (2014). But the Court
explained that the no-impeachment bar applies generally
“[d]uring an inquiry into the validity of a verdict.” Id. at 44.
Whatever its specific basis, a motion for a new trial based on
juror misconduct “plainly entails” such an inquiry because a
successful claim will overturn the verdict. Id. at 44–45. So Rule
606(b) bars the use of a juror’s affidavit to show that another
juror engaged in any misconduct, not just dishonesty during
voir dire. See id.
Later, in Peña-Rodriguez, the Court carved out a narrow
constitutional exception for evidence showing racial bias
during the deliberations. There, one juror said the defendant
was guilty of sexual misconduct “because [he was] Mexican
and Mexican men take whatever they want” and also because
the defendant’s alibi witness was “an illegal.” Peña-Rodriguez,
580 U.S. at 213. The Court held that “where a juror makes a
clear statement that indicates he or she relied on racial
3
Though several cases affect our analysis, we briefly discuss
the two Supreme Court cases here because they are the most
significant. We fully analyze the relevant legal framework
below.
13
stereotypes or animus to convict a criminal defendant, the
Sixth Amendment requires that the no-impeachment rule give
way in order to permit the trial court to consider the evidence
of the juror’s statement and any resulting denial of the jury trial
guarantee.” Id. at 225 (emphasis added).
With those rules in mind, we now examine what
occurred during the jury deliberations in Nucera’s trial.
A. Jury Deliberations
The District Court charged the jury and deliberations
began on October 2, 2019. Though twelve jurors decided
Nucera’s fate, only nine 4 are relevant here: Foreperson Kia
Lipscomb, Juror One (Black); Juror Two (White); Juror Three
(White); Juror Four (White); Juror Five (White); Juror Six
(White); Juror Nine (Black); Juror Eleven (White); and Pamela
Richardson, Juror 12 (Black). Over the first few days, the jury
asked to examine Roohr’s testimony and also sought to clarify
the definition of “reasonable doubt.” Supp. App. 1276–91. But
things soon hit a roadblock.
On the fifth day of deliberations, the jury notified the
District Court it was “unable to come to a unanimous
decision.” Supp. App. 1293. The District Court asked for the
4
Except for Lipscomb and Richardson, both of whom gave
public interviews, we omit the names of the jurors because of
privacy concerns and the affiant-jurors’ specific requests not to
have their names shared publicly.
14
parties’ guidance on how to move forward, and at the
Government’s urging, the Court convened the jury and issued
a reminder to “make every reasonable effort . . . to reach
unanimous agreement.” Supp. App. 1295. But the District
Court stressed the jury should “reach unanimous
agreement . . . only if [they could] do so honestly and in good
conscience.” Supp. App. 1295–96. Finally, the District Court
asked jurors to “make another effort” at reaching an agreement
and sent them back to deliberate. Supp. App. 1296.
Late the next afternoon, the jury sent another note to the
District Court: “[i]f we are unanimous on one count, but
deadlocked on the other two, what is our next step[?]” Supp.
App. 1299. Nucera’s counsel suggested—and the Government
agreed—to have the District Court give Third Circuit Model
Jury Instruction 9.08 governing partial jury verdicts. The
District Court called in the jury, read back their question, and
then gave the requested instruction: the jury “[did] not have to
reach unanimous agreement on all the charges before returning
a verdict on some of them,” and they could either deliver their
partial verdict, then resume deliberating on the rest, or they
could “wait until the end of [their] deliberations and return all
[their] verdicts then.” Supp. App. 1300–01. With those
instructions in mind, the jurors returned to deliberate before
later asking the District Court to release them for the day.
On day seven, the jury sent a third note to the District
Court that read simply “[w]e have come to a unanimous
decision on Count [Three].” Supp. App. 1305. The District
Court then brought the jury in, and the jury returned a
15
unanimous verdict as to Count Three.The District Court then
polled the jury to “ask each of [them] in turn if [they] agree[d]
or disagree[d] with the verdicts as announced by Miss
Lipscomb” and “found [the jury members] to be
unanimous.”Supp. App. 1309. With that done, the District
Court ordered the verdict filed and gave the jury members a
choice to declare themselves deadlocked on Counts One and
Two or keep deliberating.The jury members chose to keep
deliberating.
Two days later, deliberations broke down for good. In a
final note to the District Court, the jurors said they were
deadlocked on Count One and Count Two of the indictment,
charging Nucera with a civil rights violation and a hate crime,
respectively. The District Court asked the jurors “whether
[they] believe[d] there [was] any reasonable possibility that
further deliberations would yield a unanimous verdict on either
of [those] counts[.]” Supp. App. 1319. The answer was no. So
the District Court granted Nucera’s request for a mistrial due
to the impasse and discharged the jury.
Soon after the trial, Jurors Two, Three, Four, and Eleven
approached Nucera’s counsel with allegations of juror
misconduct. Each swore an affidavit recounting specific
instances of alleged misconduct they witnessed both before
and during deliberations. In one of the allegations, Juror Two
recalled that, before deliberations, Juror Richardson said that
she had served on a jury before and told those jurors, “[h]ope
you are all thinking guilty, I can be here all day, I have
f***king nowhere [sic] to be,” App. 189, apparently signaling
16
that she had reached the same conclusion in Nucera’s trial. In
another incident after deliberations started, jurors debated
about the meaning of the words “unreasonable” and
“unnecessary” as it related to the first two counts of the
indictment. App. 177–78, 186, 200, 210. All four affidavits
agree that Juror Six tried to end that debate: after consulting
“three different sources,” Juror Six offered his fellow jurors
definitions of the words that he had looked up the night before.
App.210.
Still, the bigger problem was the volatile mix of the
evidence with issues of race and racism. The affidavits
depicted a worsening divide between those favoring conviction
and those favoring acquittal. On one side sat nine jurors who
would vote to acquit Nucera, and on the other were three
jurors—all Black women—who thought Nucera was guilty on
each count. Based on that division, Juror Eleven told the others
he “wanted to point out ‘the elephant in the room’” that the
three Black jurors “were perhaps looking at things through a
‘different lens[.]’” App. 202. Juror Eleven recalled that
Richardson responded by saying “no shit, Sherlock, we’re
Black,” and that she questioned why she was chosen for the
jury after she admitted at voir dire that she had a “problem with
cops.” App. 202.
Juror Three described an atmosphere rife with
“bullying, racial tensions, and unfounded accusations,” all of
which she said affected the deliberations. App. 166–67. Juror
Four was more specific, noting that each time she “tried to
express [her] thoughts on the evidence,” she found herself
17
“shut down” by Juror Richardson and Juror Nine despite
pointing to “clear evidence” that supported her position. App.
180–81. Based on those dynamics, the four affiants—all of
whom are White—said they shared a belief that Nucera was
innocent of any crime, but each said they yielded to pressure
from other jurors to convict him of something so they would
not be painted as a racist.
In addition, each affidavit identified Richardson’s
various statements as the main source of the jury room’s strife.
During the deliberations, Richardson described how her older
son—who worked as a pharmacist—endured three traffic stops
late the same night and in adjoining New Jersey towns, saying
each was for “driving while Black.” App. 171, 182, 190, 205.
She also told jurors about a time her younger son was working
in his own yard at night when police approached and put him
in custody because “he could not produce a key.” App. 183.
Though he was “later released with an apology,” Richardson
said the incident happened only because “her son ‘was black,
a black man doing yard work,’” App. 191, adding that police
officers in the town followed her son for weeks after the
incident. Richardson explained that those kinds of experiences
were the reason that mothers of Black boys must teach them
how to interact with police and submit to their commands.
AndJuror Three remembered Richardson saying that because
of those experiences, “she would be hard-pressed to return to
her sons and her community without a conviction or jail time
for Frank Nucera.” App. 172.
18
After the partial guilty verdict, Richardson fought
through tears as she recounted her experiences “growing up
Black in the South.” App. 197. In one example, she told fellow
jurors she had to “urinate on the side of the road in a
mayonnaise jar when traveling with her parents because she
was not allowed to use the ‘whites only’ restroom[s]” they
passed along the way. App. 197. And in another, she described
“having been made to leave places as a child because of her
skin color.” App. 197.
Those stories brought Jurors Five and Six to tears. Juror
Six hugged Richardson and told her, “I’m sorry, I’m so sorry,
I remember those days.” App. 175. Juror Eleven also
remembered Juror Six telling him that “he felt the need to make
‘reparations’” both for the “overall treatment of African
Americans” and because of his own “past bad behavior[.]”
App. 207. And a tearful Juror Six added that he had “been
around a long time” and if the jury did not convict Nucera,
“these things will continue to happen[.]” App. 177.
Yet if Richardson’s stories of living in the South under
Jim Crow unleashed tears, her other statements sparked a
firestorm. While the jury was deadlocked on the first two
counts, Richardson declared, “Every time I hear someone in
this room say ‘I’m not prejudiced, I have a black friend,’ if I
had a gun, I would shoot each one of you.” App. 176. Stunned
silence blanketed the room, broken only when Juror Eleven
asked, “who can speak after statements like that[?]” App. 204.
Juror Eleven said Richardson responded that she was “sure [he
had] gone about [his] day before when other racist things
19
happened and it was no big deal to [him].” App. 204. Likewise,
Juror Three recalled sharing her views about why Nucera was
not guilty, only to have Richardson purportedly accuse her of
“just want[ing] 12 white jurors.” App. 192.
Finally, the affidavits also pointed to other alleged
threats and intimidation in the jury room. When the jury first
deadlocked, Juror Five slammed the table and yelled
“mother***er, I’ll be damned if we let this guy walk. I’ll sit
another three weeks until we can convict this guy.” App. 191.
Days later, and before the jury reached its unanimous guilty
verdict on Count Three, Juror Two approached the Deputy
Clerk to report “disrespect and racial comments that were
being made in the jury room during deliberations.” App. 194.
She told the Clerk, “in essence[,] that some of [the] jurors were
being called racists by other jurors.” App. 194. The Clerk
instructed that “if [she] had any further issues, [she] should
write a note to the [j]udge.” App. 194. Juror Two never did:
she noted there was paper available but no envelopes, and
without a way to seal her note, she was concerned that
Lipscomb would read it before it left the room. 5
During a break the next day, Juror Four said she
overheard Juror Five tell a court security officer he “felt like
ripping the sink off the wall in the bathroom.” App. 184. Juror
Two said things were so tense that she asked a court security
5
The record does not otherwise reveal that the Clerk made the
District Court aware of Juror Two’s concerns, or that the
District Court shared them with the parties.
20
officer to tell the Deputy Clerk that the matters she raised
before “had gotten worse.” App. 198. The court security officer
returned with a message from the Deputy Clerk that the District
Court had given jurors an added 30-minute break during which
they could leave the courthouse with their cell phones. Later,
the judge met with jurors in the jury assembly room to discuss
what was happening in deliberations, and Juror Two recalled
crying as she told the judge “there was serious disrespect going
on in the jury room,” yet she was uncertain if she mentioned
any threats. App. 198–99. After hearing the jurors’ concerns,
the District Court stressed that “personal feelings [had] to be
left out of the deliberation room” and instructed the jurors “to
go back into the deliberation room and to decide” if they
wished to continue. App. 199.
But the affiants were not the only jurors to discuss the
deliberations. The day trial ended, Richardson and Lipscomb
sat for an interview with the Philadelphia Inquirer to describe
what happened. Richardson said she feared a possible deadlock
as early as “the second day of deliberation[.]” App. 162. She
also said the Government’s recordings “helped to convince her
that Nucera was guilty of” the assault on Stroye. App. 162. And
she explained why:
When somebody used the racist
commentary that he has used his
whole life, and it’s on tape, the
racist things he said, you just
automatically have to assume that
he would do something to
somebody[.] I mean, it’s on tape
21
where he said he wished the two
people were still outside so that he
could sic the dogs on the n----s
because that would’ve put them
down.
App. 162. Lipscomb added that the jurors “all kind of
agreed that the extensive racial piece of it was absolutely there,
and that it was an atrocity.” App. 163.
Richardson noted that deliberations soon became all
about the race of the jurors. She recalled when Juror Eleven
challenged the perspective of the Black jurors, but she said it
happened differently than the way he described it. Rather than
observe they were viewing things through a “different lens,”
Richardson said that Juror Eleven was more direct: “The only
reason you African American women are voting this way is
because you’re black.” App. 163. Richardson confirmed her
acerbic reply of “[n]o s—t, Sherlock.” App. 163. But she added
that, “[t]he next morning, [a] white juror [with] black family
members confronted” Juror Eleven about the comment he
made. App. 163.
The jurors also split over whether to believe key pieces
of evidence implicating Nucera. Lipscomb explained that “the
jury struggled with the testimony of Sgt. Nathan Roohr and
Detective Sgt. Salvatore Guido, the township police officers
who implicated Nucera” with their eyewitness testimony. App.
164. According to Lipscomb, the three holdouts “really felt that
they couldn’t trust their testimony.” App. 164. Plus, the jury
found it difficult “to agree on whether Stroye was struck in the
22
head” as the Government had alleged, and that was a hard
question to resolve because neither side called Stroye to testify
even though he had been subpoenaed. App. 164.
Richardson also described how the consensus shifted to
favor guilt. By the final day, after the guilty verdict had been
rendered on Count Three and the jurors were focused on
Counts One and Two, the nine votes favoring acquittal on the
first two counts of the indictment became nine votes favoring
conviction, and those jurors started the session with an effort
“to persuade the other three to see their side.” App. 164. During
that attempt, Richardson remembered that three or four of the
men who believed Nucera was guilty broke down into tears.
But the holdouts refused to accept Roohr’s and Guido’s version
of events, and so the jury agreed to tell the District Court they
could not continue. Adding a final exclamation to the
holdouts’ resistance, “[o]ne white male juror, who was in favor
of acquittal, stood in the jury box defiantly with his arms
crossed” as the District Court closed the proceedings. App.
164.
B. Nucera’s New Trial Motion
Nucera moved for a new trial and requested an
evidentiary hearing. Nucera urged that Richardson gave
materially false answers during voir dire to conceal her biases,
and he also claimed that Richardson and others engaged in
misconduct that tainted the jury’s verdict on Count Three of
the indictment. And he connected those allegations with the
assertion that Richardson’s various statements during and after
deliberations supplied the evidence that she lied during voir
23
dire. As evidence of the alleged misconduct, Nucera offered
the four juror affidavits, Richardson and Lipscomb’s interview
in the Inquirer, and a Facebook post Richardson wrote on
September 17, 2014.6
The District Court noted that Nucera’s evidence faced
an immediate problem: Rule 606 prohibits “receiving an
affidavit or evidence of a juror’s statement, except in three
circumstances” set forth in the Rule or the constitutional
exception for racial bias under Peña-Rodriguez. Supp. App.
1348. Nucera responded that the alleged misconduct triggered
the exceptions of Rule 606(b)(2)(A), allowing evidence of
extraneous prejudicial information, and Rule 606(b)(2)(B),
6
Richardson’s Facebook post addressed the perceived lack of
accountability law enforcement officers face for domestic
violence:
Now that professional athletes are
losing money and jobs due to their
poor behavior against children and
women, when are correctional
officers and policemen going to be
sanctioned? Does this mean that
one day we are going to ask for all
men to stop the violence against
women and children? But can we
one day get to the point there is no
violence at all? Oh, I must be
dreaming . . . but it’s a great dream.
App. 159.
24
allowing evidence of an improper outside influence. He also
urged the District Court to hold that the racial bias exception
of Peña-Rodriguez applied because the evidence showed that
pervasive, general racial animus in the deliberations tainted the
verdict and denied him a fair trial.
The District Court denied Nucera’s request for a new
trial, concluding that the evidence of alleged misconduct fit
none of the exceptions in Rule 606(b)(2), and none of the
materials showed the “clear, strong evidence of juror
misconduct” that our precedent requires for a hearing. Supp.
App. 1397. The District Court explained that the rules against
impeaching jury verdicts are “very strong and very narrowly
construed,” Supp. App. 1399, compelling certain findings from
the Court about the evidence Nucera used to support his claim.
The District Court began with the allegations that Juror
Six presented definitions of two words to other jurors at the end
of deliberations. Though the Court agreed their use was
improper, it concluded that Nucera presented no evidence that
the use prejudiced him because the affidavits did not show the
incident happened before the guilty verdict on Count Three.
Instead, the evidence supported a finding that Juror Six used
the definitions after the guilty verdict because the words “had
no relationship whatsoever to the law that governed the
decision in Count [Three],” Supp. App. 1399, while they did
relate to Count Two, “for which there was no verdict.” Supp.
App. 1352.
25
Next, the District Court turned to the allegation that
Richardson’s stories injected racial bias into the deliberations.
Based on the record Nucera developed, the narrow racial bias
exception of Peña-Rodriguez did not apply because the District
Court read Peña-Rodriguez to hold that “only when the
evidence shows that the racism and the race of the defendant
was what caused the conviction that the Court can inquire to
ensure that the conviction was not based on racism.” Supp.
App. 1400. But the District Court found that “none of the
affidavits [said] that any of the jurors . . . who voted
guilty . . . did so because of [Nucera’s] race. ” Supp. App.
1356. More, the District Court observed that every court to
decide the issue had “rejected extension of Peña-Rodriguez” to
the scenario Nucera alleged. Supp. App. 1401; accord Supp.
App. 1362 (discussing United States v. Robinson, 872 F.3d 760(6th Cir. 2017) and Williams v. Price, No. 2:98cv1320, 2017
WL 6729978 (W.D. Pa. Dec. 29, 2017)).
But the District Court reasoned that even if Nucera’s
position found support in the caselaw, the nature of his case
undermined the argument that Richardson was wrong to inject
race into the deliberations:
THE COURT: [T]his is such an
unusual case. This is not just a
regular case where the race of a
plaintiff or a defendant or, you
know, the victim and aggressor are
different. This is a case where race
is an element of the crime. It is
alleged to be the motive behind the
26
alleged crimes. You’ve got to have
discussions of race and racism.
Just by definition, the jury’s going
to have to have those discussions
in order to reach a verdict.
Supp. App. 1364. The District Court concluded that all
Richardson had done was bring her life experiences to bear on
how she viewed the evidence, which is precisely what courts
expect jurors to do.
The District Court also disposed of the allegations that
threats and intimidation undermined the fairness of
deliberations. To start, Juror Two’s affidavit was the first
evidence the District Court received of comments about
shooting other jurors or ripping the sink off the wall, and the
Court zeroed in on Juror Two’s concession that she was not
sure she raised the issue when jurors met with the District
Court to discuss their concerns. Yet even if she had, the
timeline in Juror Two’s affidavit showed the alleged threats7
occurred after the jury found Nucera guilty on the false
7
The District Court also questioned whether Richardson’s
statement was even a true threat, noting Richardson did not
say, “if you don’t vote to convict, I’ll shoot you in the head”
but rather used the phrase “out of frustration” about White
jurors saying they could not be racist because they have a Black
friend or relative. Supp. App. 1366. At any rate, the District
Court made it clear that had “there [been] any indication of any
threats,” the Court “would have done something about that at
the time[.]” Supp. App. 1366.
27
statements charge in Count Three and thus could not have
affected that part of the verdict.
Finally, the District Court turned to Nucera’s argument
that Richardson lied during voir dire. After acknowledging that
Warger barred Nucera’s evidence to support that claim, the
District Court still addressed the merits of the argument and
concluded that Nucera’s evidence did not show Richardson
lied during voir dire. The Court first noted the relevant facts
that Richardson provided: she revealed her children’s
interactions with police; she said she could separate bad words
from deeds; and though she said professionals who use
derogatory language were less likely to also commit bad acts,
she never said that was always true. The District Court
explained that Richardson was seated based on the conclusion
she was truthful in those answers—a conclusion Nucera never
challenged, let alone displaced, during the voir dire process.
The District Court also found that Richardson’s
Inquirer interview and Facebook post did not show her voir
dire answers were false. Contrary to Nucera’s argument, the
Inquirer interview did not show Richardson lied during voir
dire about whether people act in accordance with hateful
language; it showed that she concluded Nucera had the
propensity to do so after hearing the full extent of his racist
language—particularly the recorded threats to sic dogs on
Black people—which had a different effect on her than the
District Court’s brief references to racial slurs during voir dire.
Likewise, the District Court found Richardson’s Facebook post
was “innocuous” and did not show she lied about antipolice
28
bias during voir dire. Supp. App. 1401.Instead, the District
Court noted, the post showed Richardson’s “frustration with
violence against women” and her perception that police
officers who perpetrate such violence often escape
accountability. Supp. App. 1401.
For all those reasons, the District Court denied Nucera’s
motion for a new trial without an evidentiary hearing. The
District Court later sentenced Nucera to 28 months on Count
Three using a cross reference and an upward variance under
the Sentencing Guidelines, which Nucera also challenged and
later raised on appeal. Almost two years later, the Government
tried Nucera again on the two charges that hung the jury in the
first trial. But the second jury deadlocked too, and at the
Government’s request, the District Court declared another
mistrial.
Nucera timely appealed.
III. JURISDICTION
The District Court had subject-matter jurisdiction under
18 U.S.C. § 3231, and our jurisdiction is proper under 28
U.S.C. § 1291 and 18 U.S.C. § 3742.
IV. RELEVANT LEGAL STANDARDS
A. Claims of Juror Misconduct
When a defendant moves for a new trial based on jury
misconduct, we review the denial of that motion for an abuse
29
of discretion. See United States v. Noel, 905 F.3d 258, 266–67
(3d Cir. 2018). The “district court’s discretion over a new trial
motion [includes determining] whether an evidentiary hearing
is necessary.” Id. at 270 n.7 (collecting cases). To get a new
trial, a defendant must (1) “file the motion within fourteen days
of the verdict unless the motion is grounded on ‘newly
discovered evidence’” and (2) “show that a new trial is in the
interest of justice.” Id. at 270 (quoting Fed. R. Crim. P. 33). A
movant receives an evidentiary hearing only where the
allegations “rise to the level of clear, strong, substantial and
incontrovertible evidence that a specific, nonspeculative
impropriety has occurred.” United States v. Claxton, 766 F.3d
280, 301 (3d Cir. 2014) (cleaned up).
B. Allegations of Juror Dishonesty During Voir
Dire
In denying Nucera’s motion, the District Court
considered the merits of his allegations that Richardson lied
during voir dire. But as we explained above, the Supreme
Court’s opinion in Warger forecloses us from doing the same:
“Rule 606(b) precludes a party seeking a new trial from using
one juror’s affidavit of what another juror said in deliberations
to demonstrate the other juror’s dishonesty during voir dire.”
574 U.S. at 42. Warger thus bars Nucera’s use of the juror
affidavits to prove this part of his claim. 8
8
As we note infra, in Warger, the Court included a footnote
alluding to possible cases of juror bias “so extreme” as to
30
The same holds true for his other evidence. Based on
Warger and our own decision in United States v. Lakhani, 480
F.3d 171 (3d Cir. 2017), we conclude Rule 606(b) still bars the
use of a juror’s statement when it appears in something other
than an affidavit and even when the juror makes the statement
publicly. In Lakhani, a defendant convicted for trying to import
missiles sought a new trial after a juror came forward to say
that other jurors engaged in misconduct during deliberations.
480 F.3d at 184. That juror appeared on a public radio show to
say she thought the Government had entrapped the defendant
and she voted guilty only after yielding to intimidation from
fellow jurors. Id. Even though the juror told her tale on the
radio, rather than in an affidavit or other writing, we still held
it was so obvious that Rule 606(b) barred the use of her
statement that we found it difficult to explain “beyond stating
the rule itself[.]” Id. at 185. Richardson’s and Lipscomb’s
statements to the Inquirer are much the same as the juror’s
public statement in Lakhani, and thus Rule 606(b) likewise
bars their use to show Richardson’s dishonesty.
Lastly, although Rule 606(b) presents no obstacle to
considering Richardson’s Facebook post, we agree with the
District Court that it does not show Richardson gave dishonest
voir dire answers or harbored antipolice bias. Like the District
Court, we conclude the post shows Richardson’s specific
warrant an exception, but we find nothing in Richardson’s voir
dire responses that constituted misconduct, let alone an
extreme case. Instead, we find the District Court’s analysis of
this issue to be reasonable.
31
frustration with a perceived lack of accountability for members
of law enforcement that commit domestic violence. That is a
long way from general antipolice bias. It also does not show
that her voir dire answers were false. Nothing that she said in
the Facebook post contradicts or was inconsistent with her
responses to questions in voir dire. We agree with the District
Court that the post was “innocuous.” Supp. App. 1401. Beyond
that, we note Richardson wrote the post five years before
Nucera’s trial, and nothing in the record suggests she tried to
conceal its existence at any point.
In sum, none of Nucera’s evidence supporting the claim
of juror dishonesty escapes Rule 606(b) and Warger. Because
he offers no other meaningful evidence to support those
allegations, we conclude that the District Court did not abuse
its discretion, and so Nucera’s challenge to the verdict on that
basis falls short.
C. Rules and Jurisprudence Governing Juror
Misconduct Evidence
Juror misconduct claims implicate the Sixth
Amendment’s guarantee that criminal defendants will get a fair
trial by an impartial jury. Yet they also threaten the important
principle that juries get the last word when they render a
verdict. To square things, Federal Rule of Evidence 606(b)
limits the evidence that defendants can use to prove they did
not get a fair trial. Once the jury enters its verdict, a defendant
may not use “a juror’s affidavit or evidence of a juror’s
statement” to question the verdict unless the exceptions in the
Rule, which we outlined above, apply. Fed. R. Evid. 606(b).
32
So, in general, a defendant cannot question the validity
of the verdict using a juror’s affidavit or any evidence of a
juror’s statement to probe (1) statements jurors made or
incidents that happened during deliberations; (2) anything that
affected any juror’s vote; or (3) a juror’s mental processes
about the verdict. But a defendant may do so if the evidence
shows one of three things happened: (1) a juror learned of
prejudicial information from outside the deliberations; (2) a
juror succumbed to an improper outside influence; or (3) a
mistake occurred when entering the verdict or completing the
verdict form.
As the Supreme Court has explained, the roots of Rule
606(b) run deep in the soil of English common law. See Peña-
Rodriguez, 580 U.S at 215(discussing Vaise v. Delaval, 1 T.R.
11, 99 Eng. Rep. 944 (K.B. 1785)). Since the Rule’s inception,
the Supreme Court has made three major pronouncements
about when and how it applies. First, in Tanner v. United
States, 483 U.S. 107, 121–22 (1987), the Court held that Rule
606(b) barred a juror’s post-verdict statement to show that
jurors engaged in misconduct during trial and in deliberations.
The Court’s decision rested on two principles. To start, the
Court observed that, were it to recognize a constitutional
exception to Rule 606(b), such a holding would have flooded
the system with challenges to verdicts, which, in turn, would
encourage juror harassment and destroy the “frankness and
freedom of discussion and conference” inherent in “what was
intended to be a private deliberation.” Id. at 120 (quoting
McDonald v. Pless, 238 U.S. 264, 267–68 (1915)). And the
Court reasoned that the jury system already had adequate
33
safeguards to protect a defendant’s Sixth Amendment rights—
the voir dire process, surveillance by court staff, and the ability
of jurors to come forward before the jury reached a verdict. Id.at 126–27.
Later, in Warger, the Court extended Tanner to hold
that “Rule 606(b) precludes a party seeking a new trial from
using one juror’s affidavit of what another juror said in
deliberations to demonstrate the other juror’s dishonesty
during voir dire.” Warger, 574 U.S. at 42. There, the Court
affirmed the denial of a new trial for an injured plaintiff based
on juror affidavits alleging the jury’s foreperson concealed her
bias in favor of the defendant. Id. at 42–44. The Court rejected
the argument that because the juror should never have been
seated, “any information she shared with other jurors was
extraneous,” and thus the affidavit revealing her dishonesty
was “admissible under Rule 606(b)(2)(A)’s exception for
evidence as to whether ‘extraneous prejudicial information was
improperly brought to the jury’s attention,’”9 id. at 51, and the
9
The Court observed that a central feature of the extraneous
evidence inquiry is whether a matter is “internal” or “external”
to a jury, and it found the challenged juror misconduct was
“internal” and off-limits under Rule 606(b). Id. at 53. The
Court explained the difference between “internal” and
“external” matters:
Generally speaking, information is
deemed “extraneous” if it derives
from a source “external” to the
jury. “External” matters include
34
Court again declined to create a constitutional exception. Id. at
50–51. Yet in a footnote, the Court acknowledged possible
“cases of juror bias so extreme that” they “abridged” the right
to a jury trial, noting the emergence of such a case would force
the Court to reexamine “whether the [Tanner] safeguards are
or are not sufficient to protect the integrity of the process.” Id.
at 51 n.3.
The “extreme” case arose three years later. In Peña-
Rodriguez v. Colorado, a state court jury convicted a Mexican
man for sexual misconduct with two minor girls. 580 U.S. at
212. Two jurors approached defense counsel and swore
affidavits alleging that another biased juror said the defendant
was guilty for two inappropriate reasons: first, he told his
fellow jurors that he believed the defendant “did it because he’s
Mexican and Mexican men take whatever they want,” and
second, he also told the other jurors that he believed the
defendant’s alibi witness was not credible based on his
incorrect belief that the witness was “an illegal.” Id. at 213. Yet
even in the face of the juror’s “apparent bias,” the trial court
and the Colorado Supreme Court both concluded there was no
publicity and information related
specifically to the case the jurors
are meant to decide, while
“internal” matters include the
general body of experiences that
jurors are understood to bring with
them to the jury room.
Warger, 574 U.S. at 51.
35
basis to overcome the bar against impeaching verdicts in
Colorado’s version of Rule 606(b).10 Id. at 213–14.
Reversing the Colorado courts, the Supreme Court held
the juror’s racial bias was the rare kind that let a court examine
the verdict. Id. at 225.In the Court’s two previous opinions
construing Rule 606(b), the Tanner safeguards seemed
appropriate to deal with the general categories of alleged
misconduct involved. But the Court concluded racial bias was
different. As Justice Kennedy wrote for the majority, racial
bias is “a familiar and recurring evil that, if left unaddressed,
would risk systemic injury to the administration of justice,”
and it had shown an unparalleled ability to evade the Tanner
safeguards. Id. at 224–25. Thus, to obey the Fourteenth
Amendment’s “imperative to purge racial prejudice from the
administration of justice,” the Court declared that “[i]t must
become the heritage of our Nation to rise above racial
classifications that are so inconsistent with our commitment to
the equal dignity of all persons.” Id. at 221. Given the uniquely
insidious threat racial bias posed to the fairness of the jury
system, the Court reasoned that the time had come for a
10
As the Court explained, Colorado’s version of the no-
impeachment rule is functionally identical to Federal Rule of
Evidence 606(b), which “[l]ike its federal
counterpart . . . generally prohibits a juror from testifying as to
any statement made during deliberations in a proceeding
inquiring into the validity of the verdict.” Peña-Rodriguez, 580
U.S. at 213.
36
constitutional exception to Rule 606(b). Peña-Rodriguez, 580
U.S. at 225.
The Court held that “where a juror makes a clear
statement that indicates he or she relied on racial stereotypes
or animus to convict a criminal defendant, the Sixth
Amendment requires that the no-impeachment rule give way
in order to permit the trial court to consider the evidence of the
juror’s statement and any resulting denial of the jury trial
guarantee.” Id. (emphasis added). But it cautioned that “[n]ot
every offhand comment indicating racial bias or hostility”
justified an inquiry. Id. For the exception to apply, the
challenged statements must show “overt racial bias that casts
serious doubt on the fairness and impartiality of the jury’s
deliberations and resulting verdict” and must also show that
“racial animus was a significant motivating factor in the juror’s
vote to convict.” Id. at 225–26. The statements in Peña-
Rodriguez easily met that standard. To start, the statements
themselves showed an “egregious and unmistakable . . .
reliance on racial bias” as the juror’s reason to convict the
defendant. Id. at 226. And the biased juror did not stop there:
“[n]ot only did [he] deploy a dangerous racial stereotype to
conclude petitioner was guilty and his alibi witness should not
be believed, but he also encouraged other jurors to join him in
convicting on that basis.” Id.
The historical sweep of the Court’s decision may be
wide but the exception it announced is narrow, and the
dissenting opinions convince us the exception is likely to
remain that way. In a dissent joined by the Chief Justice and
37
Justice Thomas, Justice Alito urged that the fundamental
reasons underlying the Court’s reluctance to create a
constitutional exception remained valid. He reasoned that our
legal system operates on the background principle that losing
certain “important evidence” is justified because
“confidentiality is thought to be essential.” Peña-Rodriguez,
580 U.S. at 235–36 (Alito, J., dissenting). Nowhere was that
truer than the jury system and its reliance on secrecy and
discretion to ensure “full and frank discussion in the jury
room.” Id. at 242 (cleaned up). That was why, “[f]or centuries,
it has been the judgment of experienced judges, trial attorneys,
scholars, and lawmakers that allowing jurors to testify after a
trial about what took place in the jury room would undermine
the system of trial by jury that is integral to our legal system.”
Id. at 236. Believing the Court had ignored that judgment,
Justice Alito warned that opening the door to the jury room
would subject jurors to harassment, lower public confidence in
juries, and give jurors an incentive to change their minds after
being “pressed for unanimity” during deliberations or facing a
hostile reaction to the verdict from people close to them. Id. at
249.
The Court’s insistence on a narrow exception has
counseled our sister courts to decline invitations to stretch the
exception beyond its narrow boundaries. See, e.g., United
States v. Brooks, 987 F.3d 593, 603 (6th Cir. 2021); United
States v. Norwood, 982 F.3d 1032, 1057 (7th Cir. 2020);
United States v. Robinson, 872 F.3d 760, 771 (6th Cir. 2017)
(finding that the exception did not apply to evidence of White
38
foreperson’s accusation that Black jurors’ view of the evidence
showed they were beholden to Black defendants).
V. DISCUSSION
Nucera raises several issues on appeal. First, he argues
the District Court erred when it refused to hold an evidentiary
hearing and denied his motion for a new trial based on his
allegations of juror misconduct. 11 In addition, he says the
District Court erred when it refused to let him identify Stroye
as having made an out-of-court statement that purportedly
showed someone else attacked him and did so in a different
location. He also urges that the District Court confused the jury
with its instruction about the unanimity required to convict him
on Count Three for making false statements to the FBI. And
finally, he urges that the District Court misread the Sentencing
Guidelines when it used the cross reference provision in the
guideline for false statements offenses to sentence him under
the more punitive guideline for civil rights offenses and varied
upward from the guideline. We only agree with Nucera’s
contention about the cross reference provision, so we will
affirm the District Court in all other respects.
11
We need not consider at any length the allegations of juror
dishonesty during voir dire, because Warger instructs that
“Rule 606(b) precludes a party seeking a new trial from using
one juror's affidavit of what another juror said in deliberations
to demonstrate the other juror’s dishonesty during voir dire.”
574 U.S. at 42.
39
A. The District Court Did Not Err in Denying
Nucera’s Motion
Nucera claims the District Court should have granted a
new trial or an evidentiary hearing based on alleged juror
misconduct before and during deliberations. But his attempt to
impeach the verdict runs headlong into Rule 606(b) and
Supreme Court precedent.
As the Supreme Court explained in Warger, the no-
impeachment bar applies generally “[d]uring an inquiry into
the validity of a verdict,” and a motion for a new trial based on
juror misconduct “plainly entails” that inquiry. 574 U.S. at 44–
45. Nucera mostly offers post-verdict juror statements to
support his claim, and that evidence falls within Rule 606(b)’s
general prohibition.12 That being so, Nucera could only use the
statements if they satisfied either the exceptions in Rule 606(b)
or the Supreme Court’s narrow constitutional exception for
evidence of racial bias in Peña-Rodriguez. But the District
Court correctly concluded the statements satisfied none. Only
the allegation that Juror Six brought dictionary definitions into
the jury room comes close to satisfying the exception for
extraneous prejudicial information, but not close enough. We
agree that Juror Six’s conduct was improper, but we likewise
agree it did not prejudice Nucera. The evidence shows the
definitions related to the first two counts, Juror Six only
showed them to the jury after Nucera’s conviction on Count
12
Richardson’s Facebook post is the one piece of evidence that
is not a post-verdict juror statement, and it therefore does not
fall into the prohibition.
40
Three, and the jury did not convict Nucera on any count for
which the definitions were used. So Nucera suffered no harm
as a result.
Nor does the evidence show an improper outside
influence affected the deliberations. Nucera points to several
instances of alleged misconduct. He directs us to Richardson’s
stories of racial discrimination and purported threats to shoot
other jurors, as well as instances of intimidation and
accusations of racist behavior by some jurors. He also alleges
that jurors intimidated one another and accused each other of
being racist. The jurisprudence is clear that Rule 606(b) bars
inquiry into “internal” jury matters and those “include the
general body of experiences that jurors are understood to bring
with them to the jury room.” Id. at 51. Internal matters also
include the less desirable things that jurors either bring with
them to the jury room or that happen once inside. See Tanner,
483 U.S. at 121–22 (rejecting a claim based on drug and
alcohol use); Peña-Rodriguez, 580 U.S. at 225 (explaining that
not “every offhand comment indicating racial bias or hostility”
triggers an exception to the no-impeachment bar). Rule 606(b)
thus does not allow juror evidence of one juror’s accusations
of racism against another. Or even juror intimidation.13 So the
13
As we have explained, “[t]hough we hope that jury
deliberations proceed in a manner respectful of every juror’s
opinion, rather than what allegedly occurred here, ‘[t]estimony
concerning intimidation or harassment of one juror by another
falls squarely within the core prohibition of the Rule.’”
41
District Court could not consider any of Nucera’s evidence of
juror misconduct under the Rule’s exception to show an
improper outside influence.
Finally, Nucera’s evidence does not satisfy the Peña-
Rodriguez exception for racial bias. That narrow exception
applies only “where a juror makes a clear statement that
indicates he or she relied on racial stereotypes or animus to
convict a criminal defendant[.]” Peña-Rodriguez, 580 U.S. at
225 (emphasis added). Whether a juror has “made statements
exhibiting overt racial bias that cast serious doubt on the
fairness and impartiality of the jury’s deliberations and
resulting verdict” is “a matter committed to the substantial
discretion of the trial court,” Peña-Rodriguez, 580 U.S. at 225–
26, and we agree with the District Court that Nucera’s evidence
fails to meet that strict test. True, the affidavits and the Inquirer
interview show jurors made pointed statements about race. But
we agree that none of Nucera’s evidence shows that a juror
voted to convict because of Nucera’s race. Nor do the juror
affidavits show that “Juror Richardson’s racial animus was a
‘significant motivating factor’ in her vote to convict.” Reply
Br. 1. Richardson said nothing about Nucera being White, let
alone that she would vote to convict him because he was
White. Instead, the evidence shows she believed Roohr and
Guido were telling the truth about what happened: Nucera had
done what Roohr and Guido said he did. As the District Court
concluded, in so reasoning, she drew on her life experiences.
Lakhani, 480 F.3d at 185 (quoting United States v. Stansfield,
101 F.3d 909, 914 (3d Cir. 1996)).
42
She also found it troubling that her White colleagues did not
share that viewpoint. The level and vehemence of her
“trouble”—even outrage—is of no consequence at this point.
Jury deliberations can be heated, but that is not a concern of
the courts after the fact.
Similarly, we decline to hold that expressions of racial
animus among jurors are enough to invoke the Peña-Rodriguez
exception. On that, we agree with the Government that the
Sixth Circuit’s opinion in United States v. Robinson shows
why we should reject Nucera’s argument. There, the
defendants sought a new trial after two Black jurors alleged
that when they expressed doubt about the defendants’ guilt, the
White foreperson said that “she ‘[found] it strange that the
colored women are the only two that can’t see’” and that she
thought they “were protecting the defendants because they felt
they ‘owed something’ to their ‘black brothers.”’ Robinson,
872 F.3d 760, 768 (6th Cir. 2017). The district court denied the
motions because Rule 606 barred use of the juror’s statements
to impeach the verdict. Id. at 769. The Supreme Court decided
Peña-Rodriguez while their case was pending appeal, so the
defendants urged the Sixth Circuit to find that its racial bias
exception applied. Id. But the Sixth Circuit agreed with the
district court that the foreperson’s statement was not the “clear
statement” Peña-Rodriguez14 demanded. Id. at 770. And it
14
The district court denied the defendants’ motion because
they gathered evidence of the foreperson’s misconduct in
“violation of both a local court rule and a specific
admonishment from the bench not to contact jurors.”
43
reasoned that even though the foreperson “impugn[ed] [the
Black jurors’] integrity based on their shared race with the
defendants, she never said anything stereotyping the
defendants based on their race,” much less that “she voted to
convict [the defendants] because they were African-
American.” Id. at 771 (emphasis added).
To distinguish Robinson, Nucera urges that
Richardson’s statements were worse than the foreperson’s
comments there, and through those statements, she
“demonstrated her own racial bias as a motivating factor in her
vote to convict.” Reply Br. 2. But Nucera has not shown that
Richardson voted to convict him because he is White.
Ironically, the closest thing Nucera offers is Juror Eleven’s
statement to Richardson and the other Black jurors—as
Richardson recounts it in the Inquirer article—that “[t]he only
reason you African American women are voting this way is
because you’re black.” App. 163. But that falls short here, just
as it did in Robinson.
Like the District Court, we also reject Nucera’s
alternative argument that Peña-Rodriguez applies to evidence
that a juror convicted the defendant because of negative
experiences they had based on their own race. Nucera does not
offer a single case supporting that argument, and even if he did,
Robinson, 872 F.3d at 770. But the Sixth Circuit held that the
exception in Peña-Rodriguez “would not apply even if the
defendants had not” done so and the evidence “was properly
before the district court.” Id.44
there is no clear evidence that Richardson or any other juror
did so here.
Jurors faced off over a central question: who was telling
the truth—Roohr and Guido, or the many witnesses the FBI
interviewed? In answering that question, the jurors split over
the version of events each of them would accept. As
Richardson explained in the Inquirer article, the recording of
Nucera’s language persuaded her that Roohr and Guido were
telling the truth, and Nucera was guilty of the crimes for which
he was charged. She reached that conclusion based on her life
experiences as a Black woman. Viewed in context, her
statements do not satisfy the Peña-Rodriguez exception.
Accordingly, we hold that Rule 606(b) barred the
District Court from considering Nucera’s evidence of juror
misconduct, and the District Court did not abuse its discretion
in denying his motion for a new trial or an evidentiary hearing.
B. The District Court’s Hearsay Ruling Was
Not Error
Nucera argues on appeal that the District Court
improperly limited his ability to use Stroye’s out-of-court
statement about the incident at the hotel. The FBI interviewed
Stroye during its investigation, and Nucera says the statement
Stroye gave shows Nucera did not commit the alleged assault.
Thus, the District Court should have let him confront an FBI
witness with the fact that Stroye made the statement so that he
could show that the FBI conducted a flawed investigation. We
disagree.
45
On December 1, 2016, Stroye gave a statement to the
FBI describing rough interactions with other BTPD officers at
the scene. The FBI noted that Stroye recounted that, after the
incident in the hotel hallway, he had been pushed “into the
front door [of a police cruiser by] a white male with no facial
hair and a ‘military style’, short haircut.” App. 217. This
description did not match Nucera, and it suggested that an
officer other than Nucera had carried out the alleged assault in
the hallway. Nucera moved to introduce Stroye’s statement as
evidence that the FBI did not investigate others for the alleged
assault, though he assured the District Court he would not offer
it for the truth of the matter asserted. 15 If introduced for the
truth of what Stroye said, the statement would be inadmissible
hearsay unless an exception applied. Yet even if the statement
was admitted exclusively for Nucera’s stated purpose, the jury
would hear the statement for what it was—Stroye saying
someone other than Nucera assaulted him. So the District
Court had to decide whether the statement should be admitted
as having come from Stroye, given the likelihood that the jury
could not help but consider it for its truth.
Federal Rule of Evidence 403 gave the District Court an
excellent tool to reason through the conundrum, and it applied
the Rule’s balancing test to weigh the unfair prejudice the
15
This was the first time Nucera confirmed for the District
Court his desire to introduce the statement, though Nucera had
told the Government that he might seek to introduce it, and the
Government had filed a motion in limine to preclude its
admission, which the District Court denied without prejudice.
46
statement would create against its probative value to show the
FBI’s investigative shortcomings. The District Court
concluded the former outweighed the latter and excluded the
statement, though the Court let Nucera confront the FBI’s
witness with its substance as showing the FBI’s failure to
follow up. Nucera contends on appeal that the District Court
erred in its Rule 403 analysis because it failed to identify the
prejudice the Government would suffer if the statement were
admitted. He also contends that the District Court erred by not
concluding that the “trustworthiness” exception to hearsay
applied.
Nucera’s argument on Rule 403 faces two problems.
First, he never objected to the District Court’s Rule 403
balancing, thus waiving his argument that the District Court
did not explain the prejudice. So we review for plain error. That
standard requires Nucera “to show that there is: (1) an error;
(2) that is ‘clear or obvious’; and (3) that ‘affected [his]
substantial rights.’” United States v. Gonzalez, 905 F.3d 165,
182–83 (3d Cir. 2018). The standard imposes a difficult
burden.
The second problem is that the District Court did not err
at all, let alone plainly. The Supreme Court has explained that
“[t]he primary justification for the exclusion of hearsay is the
lack of any opportunity for the adversary to cross-examine the
absent declarant whose out-of-court statement is introduced
into evidence.” Anderson v. United States, 417 U.S. 211, 220
(1974). That diminished opportunity was precisely the
prejudice Nucera’s use of the statement created: it would have
47
eliminated the Government’s ability to conduct a meaningful
cross-examination of the declarant, Stroye. And the District
Court signaled that inability would be fatal when it told Nucera
that Stroye “is available today if you want to put him on the
stand.” Supp. App. 940. Yet Nucera chose not to call Stroye as
a witness. So the District Court was correct that the prejudice
of admitting the statement outweighed any value to Nucera of
pointing out that the FBI did not follow up on leads or other
suspects, and Nucera was able to make that point by attacking
the FBI’s investigation in other ways.
Moreover, the District Court satisfied our requirements
for a proper Rule 403 balancing. Though “[w]e prefer that the
district court show its work” in a Rule 403 balancing, “we will
affirm so long as it makes clear that it did the weighing itself.”
United States v. Heatherly, 985 F.3d 254, 265 (3d Cir. 2021).
The District Court did so here by concluding on the record that
the balance of probative value and unfair prejudice tipped
heavily toward the latter and then excluding the statement on
that basis. Having shown its work, we will affirm the District
Court’s ruling.
Nucera also urges that the statement qualified for the
exception to hearsay found in Federal Rule of Evidence 807.
That exception lets a court admit an otherwise inadmissible
hearsay statement if the statement “is supported by sufficient
guarantees of trustworthiness” and “is more probative on the
point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts.” Fed. R.
Evid. 807(a). We have cautioned that this “residual exception”
48
applies “only when certain exceptional guarantees of
trustworthiness exist and when high degrees of probativeness
and necessity are present.” United States v. Bailey, 581 F.2d
341, 347 (3d Cir. 1978). Nucera apparently made this argument
in a brief he sent to the District Court at 1:30 am on the morning
of the hearing and did not docket until five days later, all while
never raising Rule 807 at the hearing. So he arguably waived
the argument, but in any case, it fails on its own terms.
Nucera urges there are several reasons to find Stroye’s
statement trustworthy under Rule 807 based on the
circumstances under which he made it, namely Stroye made
the statement in the comfort of his own home, and with his
attorney present; he faced criminal penalties under 18 U.S.C. §
1001 if he lied; he had no motive to lie; and he confirmed the
same version of events in his meetings with agents and
prosecutors. But trustworthiness has as much to do with the
circumstances of the declarant’s observation of the matter as it
does with the circumstances of making the statement after the
fact. Nucera addresses only the latter. But there are clear
reasons to question the former: among other things, the
Government urges that Stroye had been pepper sprayed,
affecting his ability to see who pushed him. Also, the
Government’s theory of the event was that the attack happened
from behind. All of that undermines Nucera’s contention that
Stroye’s statement was trustworthy.
Perhaps more importantly, a hearsay statement is only
admissible under Rule 807 if “it is more probative on the point
for which it is offered than any other evidence that the
49
proponent can obtain through reasonable efforts.” Fed. R.
Evid. 807(a)(2). Stroye was available to testify, and his in-
court testimony about who assaulted him would have been
more probative on that point than the hearsay statement would
have been. Accordingly, Stroye’s statement was not admissible
under Rule 807.
Whether or not Stroye’s statement could have been
admitted under the hearsay rule, the District Court would still
have been correct to exclude it based on Rule 403 because the
lack of opportunity for cross-examination risked unfair
prejudice that outweighed its probative value. So we find no
error in the District Court’s ruling, and we will affirm.
C. The Unanimity Instruction Was Not
Confusing
Nucera next argues that the District Court erred by
“confusing” the jury with its instruction about the specific
unanimity required to convict Nucera for giving a false
statement. Nucera Br. 49. He claims that the District Court’s
final instruction could have led jurors to believe that “each
individual juror must find that at least one—as opposed to all—
of the four allegedly false statements were made by Appellant,
but not that all jurors had to be unanimous as to which of the
statements was made.” Nucera Br. 50.
Federal Rule of Criminal Procedure 30 puts an
important limit on appellate claims that a jury instruction was
improper:
50
No party may assign as error any
portion of the charge or omission
therefrom unless that party objects
thereto before the jury retires to
consider its verdict, stating
distinctly the matter to which the
party objects and the grounds of
the objection.
United States v. Russell, 134 F.3d 171, 178 (3d Cir. 1998)
(quoting Fed. R. Crim. P. 30). As we explained in Russell, Rule
30 exists “to provide the district court an opportunity to correct
potential problems in jury instructions before the jury begins
its deliberations.” Id. (citing United States v. Logan, 717 F.2d
84, 91 (3d Cir. 1983)) (emphasis added).
Rule 30 governs the outcome here. Before instructing
the jury, the District Court held a charging conference with the
parties during which Nucera persuaded the Court to give a
more precise unanimity instruction. The District Court obliged
Nucera again when something in the Government’s closing
troubled Nucera. Both times, the District Court did precisely
what Nucera asked and the way he asked it be done. Nucera
never objected. Once the jury retired to deliberate, Rule 30
barred any challenge to the instructions. Because Nucera failed
to challenge the instructions before deliberations, we review
for plain error, id. at 180, and on this record, we find none.
Before giving his summation, and with the jury
excused, Nucera raised his concern that the jury instruction
may not have clearly communicated that, to convict, the jury
51
must be unanimous in concluding that any of the statements
were false. When the jury returned, the District Court clarified
the false statements instruction as Nucera requested:
THE COURT: All right. Have a
seat, ladies and gentlemen. Before
we hear from [Nucera’s counsel], I
just want to make sure I made
myself clear.
Charge 36, about the false
statements, and I said you only
need to find –you’re going to have
to find one of the four [statements]
to have met all of the five
elements. Remember, your vote
has to be unanimous as to those.
Supp. App. 1196. We discern no error in the District Court’s
instruction, let alone a plain one, and we note that, apart from
urging juror confusion based on the affidavits, Nucera points
to no case that casts doubt on the correctness of the instruction
given here.
So we will affirm the District Court’s instruction.
D. The District Court Erred in Part in Its
Application of the Guidelines
The District Court sentenced Nucera on May 26, 2021.
The Presentence Investigation Report (PSR) calculated “an
offense level of 12” and assigned Nucera a criminal history
52
category of one “because [he had] no criminal record, yielding
a recommended sentence of 10 to 16 months.” App. 28. To
reach its offense calculation, the PSR began with the base
offense level of 6 required by § 2B1.1(c)(3), “[t]he guideline
for a violation of 18 U.S.C. § 1001(a)(2).” PSR ¶ 26. It then
used the provision in § 2B1.1(c)(3) permitting a cross
reference when “the conduct related to the count of conviction
establishes an offense specifically covered by another
guideline in Chapter Two.” PSR ¶ 26. Based on that provision,
the PSR concluded that because the count of conviction
asserted that Nucera’s lie was about his civil rights violation, it
was appropriate to cross reference the civil rights guideline
§ 2H1.1, which resulted in an increase of 6 offense levels. The
District Court accepted the guideline calculation, and it varied
from the guideline based on the nature of Nucera’s lies, as we
discuss below, to impose a sentence of twenty-eight months.
As for the application of the cross reference provision,
the District Court noted that there was “very little law on [the]
subject” and that the issue “ha[d] not come up very often on
this specific cross reference.” App. 38. The District Court
believed that the Supreme Court had eased the interpretive task
by issuing recent guidance that sentencing courts could apply
an unambiguous guideline using its plain text. And in the
District Court’s view, § 2B1.1(c)(3)’s directive was clear: if
the “conduct set forth in the count of conviction establishes an
offense specifically covered by another Guideline in Chapter 2
. . . apply that other Guideline.” App. 38. The District Court
agreed with the Government that Count Three included the acts
of the civil rights violation “because [that count] specifically
53
refer[ed] to the incident in which [Nucera] slammed [Stroye’s]
head into the [doorjamb] during the arrest after [Stroye] had
been restrained and handcuffed.” App. 38–39. So the Court
overruled Nucera’s objection and found that the PSR was
correct to use the cross reference from § 2B1.1(c)(3) to §
2H1.1.
In short, the District Court held that, because Count
Three contained language related to the assault, the conduct in
that count established a civil rights violation and permitted a
cross reference to the civil rights guideline. But we believe that
the cross reference should not have applied. Section
2B1.1(c)(3) instructs that “[i]f . . . the defendant was convicted
under a statute proscribing false, fictitious, or fraudulent
statements or representations generally [and] the conduct set
forth in the count of conviction establishes an offense
specifically covered by another guideline in Chapter Two . . .
apply that other guideline.” The District Court was right that
there is little guidance on how to apply the provision, and we
note this is a case of first impression in our Court. But the
available caselaw compels us to read the cross reference more
narrowly than the Government and the District Court.
At issue is the meaning of the phrase “[i]f the conduct
set forth in the count of conviction establishes an offense
specifically covered by another guideline.” § 2B1.1(c)(3). The
opinions of our sister courts help illuminate that meaning. In
United States v. Arturo Garcia, 590 F.3d 308 (5th Cir. 2009),
the defendant lied to border officials about the status of an
undocumented Mexican woman he tried to drive across the
54
U.S.-Mexico border in his pickup truck. Id. at 310. The count
of conviction alleged the defendant “made a false statement
about his passenger’s citizenship to a border officer in an
attempt to aid the female passenger’s entry into the United
States.” Id. at 316. Based on that conduct, the district court
cross referenced § 2B1.1(c)(3)(C) to § 2L1.1, “which
specifically covers Smuggling, Transporting, or Harboring an
Unlawful Alien.” Id. at 313.
The Fifth Circuit affirmed the cross reference because
the sole count of conviction alleged Garcia lied to the border
officer “in an attempt to aid the female passenger’s entry into
the United States,” and the “alien-smuggling statute,
§ 1185(a)(2), expressly covers this conduct when it makes it a
crime for any person to transport or attempt to transport from
or into the United States another person with knowledge or
reasonable cause to believe that the departure or entry of such
other person is forbidden by this section.” Id. at 316 (cleaned
up). Thus, the lie itself “established” the offense of aiding the
passenger’s entry into the United States. Said another way, the
conduct of lying to federal officials constituted the cross
referenced offense of attempting to aid the illegal entry.
The defendant in United States v. Genao, 343 F.3d 578,
581 (2d Cir. 2003), was similarly convicted of making a false
statement under 18 U.S.C. § 1001, and the count of conviction
alleged that he made a false innocence proffer to federal
investigators about when he knew that certain funds came from
illegal sources. The Government sought a cross reference to the
obstruction of justice guideline on the theory that the defendant
55
lied to investigators so that they would not convene a grand
jury to indict him. Id. There was no general challenge to the
application of the cross reference, but the defendant convinced
the court that the charged conduct had to establish the exact
elements of the offenses underlying the obstruction of justice
guideline. Id. at 582–83. Because the lying offense as charged
did not include all the elements of the obstruction offenses, the
Second Circuit affirmed the district court’s refusal to apply the
cross reference. Id. at 585–86. Thus, the Court held that the lie
did not establish the second offense just because it obstructed
justice; the lying as charged also had to include and establish
all the elements of the obstruction offenses for the cross
reference to apply. Id.These two cases suggest that the conduct of lying must
constitute the cross referenced offense. In Garcia, the lying
constituted aiding the entry of an undocumented person, while
in Genao, the lying did not constitute obstruction. The cases
tell us “establish” means “constitute” or “equate to.” We hold
that a cross reference under § 2B1.1(c)(3) is appropriate only
when the defendant’s conduct of making the false statement
itself constitutes or establishes the offense addressed in the
other guideline.16 Here, the lying did not constitute, or
16
The District Court's view that “the conduct set forth in the
count of [Nucera’s] conviction” included conduct other than
lying could raise concerns that the cross reference provision is
ambiguous. But the parties have not urged this interpretation.
And even if we examined the text, structure, history and
purpose of the cross reference provision to confirm its
56
establish, the civil rights violation. Instead, Nucera lied about
whether he had committed a civil rights violation.
Nucera’s situation is similar to United States v. Bah, 439
F.3d 423, 426 (8th Cir. 2006). Bah pled guilty to making false
statements under 18 U.S.C. § 1001 for his involvement in a
fraudulent immigration documents scheme. Id. The count of
conviction alleged Bah falsely told “an Immigration and
Customs Enforcement agent that he did not know the purpose
of his and [an accomplice’s] overnight trip to Iowa from
Maryland, when in truth and in fact, [Bah] knew the purpose
of the trip was to pick up a package at the Post Office in Cedar
Rapids, Iowa” containing fraudulent immigration documents
used to obtain visas from foreign consulates. Id. at 427–28. The
district court relied on testimony from an Immigration and
Customs Enforcement (ICE) agent to cross reference “the more
punitive guideline of § 2L2.1 (the sentencing guideline for
trafficking in immigration documents or making a false
statement with respect to the immigration status of another).”
Id. at 426.
The Eighth Circuit held that the district court erred in
using the cross reference. Even though the ICE agent’s
ambiguity, as our precedent instructs, see United States v.
Adair, 38 F.4th 341, 349 (3d Cir. 2022); United States v. Nasir,
17 F.4th 459, 471 (3d Cir. 2021) (en banc), we would still
conclude that the provision is not genuinely ambiguous, and
we would also conclude that our interpretation limiting the
conduct to lying is the correct one.
57
testimony showed Bah violated something more serious than
18 U.S.C. § 1001, “the conduct set forth in the count of
conviction” still failed to “establish that Bah committed an
offense punishable pursuant to § 2L2.1.” Id. at 428. Bah lied
about what he knew, but that lie did not constitute either of the
offenses the district court cross referenced under § 2L2.1.
Similarly, here, Nucera lied about what he did, but his lie does
not constitute or establish a civil rights violation. We therefore
conclude that the District Court should not have applied the
cross reference to increase Nucera’s offense level, and we will
remand for resentencing.17 Because we are vacating Nucera’s
17
Application Note 17 buttresses our conclusion that the cross
reference does not apply here:
Cross Reference in Subsection
(c)(3).—Subsection (c)(3)
provides a cross reference to
another guideline in Chapter Two
(Offense Conduct) in cases in
which the defendant is convicted
of a general fraud statute, and the
count of conviction establishes an
offense involving fraudulent
conduct that is more aptly covered
by another guideline.
But we need not rely on this note as we find no ambiguity in
the guideline itself. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400,
2414–16 (2019).
58
sentence, we need not address his challenge to its substantive
reasonableness.
VI. CONCLUSION
For the reasons above, we will affirm the District
Court’s denial of Nucera’s motion for a new trial or an
evidentiary hearing, as well its evidentiary ruling and its
instructions to the jury about unanimity. But we will vacate the
District Court’s sentencing order and remand for further
proceedings consistent with this opinion.
59
United States of America v. Frank Nucera, Jr., No. 21-2115
______________
JORDAN, Circuit Judge, concurring.
I join today’s opinion but write separately to underscore
the duty of trial courts to contemporaneously investigate
credible allegations of juror misconduct.
As our opinion explains, the Supreme Court in Pena-
Rodriguez v. Colorado identified a narrow constitutional
exception to the no-impeachment rule embodied in Federal
Rule of Evidence 606(b). The Court there said the “Sixth
Amendment requires that the no-impeachment rule give way”
where “a juror makes a clear statement that indicates he or she
relied on racial stereotypes or animus to convict a criminal
defendant[.]” 580 U.S. 206, 225 (2017). In other words, the
constitutional exception is triggered only by a juror’s statement
that the juror voted to convict based, in some significant
measure, on the defendant’s race.
That exception was and remains the single
constitutional limitation on the no-impeachment rule.
Although adopted by Congress in 1975 when it approved Rule
606(b), Pub. L. No. 93-595, § 1, 88 Stat. 1926, 1929-1948
(1975), the no-impeachment rule has existed for centuries at
common law, affording finality and stability to jury verdicts.
Pena-Rodriguez, 580 U.S. at 215, 217-18; see also McDonald
v. Pless, 238 U.S. 264, 267 (1915) (“[L]et it once be established
that verdicts solemnly made and publicly returned into court
can be attacked and set aside on the testimony of those who
took part in their publication and all verdicts could be, and
many would be, followed by an inquiry in the hope of
1
discovering something which might invalidate the finding.”).
If finality in our trial-by-jury system is to be maintained, courts
must resist expanding the constitutional exception, even when
faced with evidence of juror misconduct.
Knowing that, however, does not make this an easy case
for me. On the contrary, the circumstances that came to light
after the verdict here are so disturbing it is hard to let the
verdict stand. If the sworn statements of four separate jurors
are to be believed, Juror Pamela Richardson berated and
threatened white jury members in her effort to strongarm them
into convicting Nucera. They allege that she repeatedly called
them racists, that she said they were inclined to acquit Nucera
because of their racism, and that they would only be happy with
an all-white jury. She allegedly declared that, “[e]very time I
hear someone in this room say ‘I’m not prejudiced, I have a
black friend[,’] if I had a gun, I would shoot each one of you.”
(App. at 176 (Juror 3 Affidavit); accord 184 (Juror 4 Affidavit)
(“[You just don’t know. I could shoot you all.”), 197 (Juror 2
Affidavit) (“You are lucky I don’t have a gun because I would
shoot some of you.”), 204 (Juror 11 Affidavit) (same).)
Due to what one juror described as an atmosphere of
“bullying, racial tensions, and unfounded accusations[,]” (App.
at 166-67 ((Juror 3 Affidavit)), and to avoid being branded as
racists, the four affiant-jurors voted to convict Nucera on
Count Three, even though they now assert that they believed
him to be innocent. (App. at 167 (Juror 3 Affidavit) (“As the
deliberations progressed, I felt like I was being labelled as a
racist if I did not find Frank Nucera guilty beyond a reasonable
doubt.”); 176-77 (Juror 3 Affidavit) (“I was … particularly
[troubled by] the accusations of racism directed at me … I was
essentially shamed into voting guilty regarding Count Three,
2
despite that I did not want to do so.”); 185 (Juror 4 Affidavit)
(“[H]er comment … made me feel like I was being racist to
vote not guilty, even though not guilty was my true belief from
the evidence.”); 195 (Juror 2 Affidavit) (“Ultimately, affected
by all of the foregoing, I regrettably compromised my prior Not
Guilty vote on Count 3 and changed it to Guilty.”); 208 (Juror
11 Affidavit) (“This conduct and the comments by some other
jurors … increasingly made me feel that the other jurors were
perceiving me as a racist simply because I was voting not
guilty.”).)
In sum, it is alleged that Richardson, instead of
endeavoring to convince the other jurors to convict Nucera
based on evidence of his guilt, sought to improperly achieve
her desired outcome by hurling race-based accusations and
threats around the jury room. Guilty or not, Nucera, like all
criminal defendants in our constitutional order, deserved an
unbiased jury of his peers, people who would discuss the case,
not each other’s skin color. And he was likewise entitled to
jurors who would be influenced solely by the evidence and
persuasive force of proper argument, not by threats and
vituperation. If what the other jurors have said about
Richardson’s remarks and about their own votes is true, he
didn’t get that. Richardson stopped short of announcing that
she was voting to convict Nucera because he is a white man,
but, given that Nucera was charged with a racist hate crime,
there is a terrible irony in the racially charged language that is
said to have poisoned the jury deliberations.
As bad as the allegations about Richardson’s statements
are (and they are, I recognize, only allegations; she would
likely give a different account of her remarks, but I am taking
the allegations as true for purposes of this discussion), they
3
nevertheless do not amount to a clear statement about her vote
to convict, as Pena-Rodriguez demands. Indeed, given the
appalling evidence of Nucera’s racism and abuse of authority,
one could conclude that Richardson would have been just as
threatening and noxious in her comments during jury
deliberations if Nucera had not been white.
Nor did the four jurors who took the brunt of
Richardson’s animus make any clear statements that their votes
to convict were based on Nucera’s race. As today’s opinion
points out, their statements instead show that they convicted
him for fear of being themselves branded as racist. That is a
distinction with a serious difference. See Pena-Rodriguez, 580
U.S. at 225-26 (holding that, for the no-impeachment rule to
give way, “there must be a showing that one or more jurors
made statements exhibiting overt racial bias,” and that the
overtly hostile statement show that “racial animus was a
significant motivating factor in the juror’s vote to convict”).
This case therefore illustrates the unsettling reality that
there may simply be no remedy for juror misconduct if it comes
to light too late, even when there is a real chance that the
misconduct has undermined a defendant’s due process right to
“a jury capable and willing to decide the case solely on the
evidence before it[.]” Smith v. Phillips, 455 U.S. 209, 217
(1982). Because of the countervailing value our society places
on the confidentiality and finality of jury deliberations, a value
of such high importance that it is given the force of law in Rule
606(b), we are generally not free to correct even egregious
wrongs once the jury has rendered its verdict. Although “we
hope that jury deliberations proceed in a manner respectful of
every juror’s opinion,” testimony “concerning intimidation or
harassment of one juror by another falls squarely within the
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core prohibition of the Rule.” United States v. Lakhani, 480
F.3d 171, 185 (3d Cir. 2007); see also id. at 184 (“[E]vidence
of discussions among jurors, intimidation or harassment of one
juror by another, and other intra-jury influences on the verdict
is within the rule, rather than the exception, and is not
competent to impeach a verdict.”)
Fortunately, defendants have “other sources of
protection” for their “right to a competent jury.” Tanner v.
United States, 483 U.S. 107, 127 (1987). First, trial courts and
counsel have the opportunity to examine the “suitability of an
individual for the responsibility of jury service … during voir
dire.” Id. Second, “during the trial the jury is observable by
the court, by counsel, and by court personnel.” Id. And third,
“jurors are observable by each other, and may report
inappropriate juror behavior to the court before they render a
verdict.” Id.Without vigilance on the part of trial participants and
court personnel, however, these sources of protection can end
up being ineffectual. Here, Juror 2’s affidavit states that she
twice attempted to alert the District Court about “disrespect
and racial comments that were being made in the jury room
during deliberations.” (App. at 194.) She says she told the
Deputy Clerk “that some of [the] jurors were being called
racists by other jurors[,]” to which the Deputy Clerk responded
that, “if [she] had any further issues, [she] should write a note
to the [j]udge.” (App. at 194.) That response suggested the
only avenue by which Juror 2 could communicate improper
conduct to the District Court was by a written note delivered
through the jury foreperson. After being rebuffed by the
Deputy Clerk, Juror 2 understandably declined to write a note
because she feared other jurors’ reactions if the foreperson read
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the note aloud. The result was that a serious problem that
should have been promptly addressed was not.
Once Richardson made her comment about shooting
other jurors, Juror 2 again contacted the Deputy Clerk,
explaining that the atmosphere “had gotten worse.” (App. at
198.) This time, the Deputy Clerk informed the presiding
judge, who then met with the jurors in their assembly room.
Juror 2 stated in her affidavit that she could not remember
whether she specifically mentioned Richardson’s threat, but
she did recall crying as she “told the [j]udge that there was
serious disrespect going on in the jury room.” (App. at 198.)
The District Judge, widely and rightly respected, is said to have
advised the jurors that “personal feelings [had] to be left out of
the deliberation room[.]” (App. at 199.) Had he known of
threats, he would surely have inquired further, but, at this
juncture, we can only guess what he was told. Whatever it was,
though, was not plain enough to convey what we are being told
now. Again, timing matters.
If we are to maintain the careful balance between
protecting a defendant’s right to a competent jury and
respecting the post-verdict confidentiality and finality of jury
deliberations, jurors must promptly and clearly report
misconduct, and court personnel in turn must promptly report
allegations of jury misconduct to the trial judge. If the judge
learns of serious misconduct before the jury delivers its verdict,
there should then, of course, be an immediate investigation
adequate to address the seriousness of the allegations. Cf.
Smith at 217 (“[A] trial judge [must be] ever watchful to
prevent prejudicial occurrences and to determine the effect of
such occurrences when they happen.” (emphasis added)).
Although Rule 606(b) protects the finality of verdicts, neither
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its express terms nor its purpose prevents inquiry into juror
misconduct before a verdict is rendered.
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