United States v. Nieves ( 2023 )

21-1901-cr
United States of America v. Nieves
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2022
Argued: October 28, 2022 Decided: January 26, 2023
Docket No. 21-1901-cr
UNITED STATES OF AMERICA,
Appellee,
— v. —
CHRISTIAN NIEVES, also known as Sealed Defendant 1,
Defendant-Appellant,
ELIAS POLANCO, also known as Sealed Defendant 2,
Defendant.*
*
The Clerk of Court is directed to modify the caption to conform to the above.
B e f o r e:
LYNCH, LEE, and ROBINSON, Circuit Judges.
Christian Nieves appeals from a judgment of the United States District
Court for the Southern District of New York (Rakoff, J.) sentencing him to 36
months in prison following his conviction by a jury of witness retaliation. Nieves
challenges the manner in which the district court conducted jury selection,
arguing primarily that the district court neglected to adequately screen
prospective jurors for bias against gang members and that the voir dire process
was too abbreviated to allow for informed peremptory and for-cause challenges.
We agree that, under these circumstances, the district court exceeded its
discretion by failing to sufficiently account for the risk of gang-related bias
among prospective jurors, and we therefore VACATE the judgment of the district
court and REMAND for further proceedings.
JUN XIANG, Assistant United States Attorney (Allison Nichols,
Karl Metzner, Assistant United States Attorneys, on the
brief), for Damian Williams, United States Attorney for
the Southern District of New York, New York, NY,
for Appellee.
EDWARD S. ZAS, Federal Defenders of New York, Inc.,
Appeals Bureau, New York, NY, for Defendant-Appellant.
GERARD E. LYNCH, Circuit Judge:
“[W]e have never reversed a conviction for the failure to ask a particular
question of prospective jurors.” United States v. Bright, No. 20-3792, 2022 WL
2
53621, at *1 (2d Cir. Jan. 6, 2022) (summary order). That is no great surprise:
district judges are afforded broad discretion in conducting voir dire. That
discretion, however, is not boundless.
Christian Nieves (“Nieves”) challenges his conviction, by jury trial, on one
count of witness retaliation. The essence of his appeal is that the district court’s
(Jed S. Rakoff, J.) abbreviated voir dire left him, and the district court, unable to
meaningfully screen prospective jurors for bias against gang members, rendering
Nieves’s trial fundamentally unfair. While we disagree with Nieves’s more
ambitious arguments on appeal that various individual district court decisions in
connection with voir dire were, on their own, per se reversible – including his
contention that the district court was required specifically to ask prospective
jurors about gang-related bias – we agree that under these circumstances, the
district court abused its discretion by failing to take any of several possible steps
that could have effectively screened prospective jurors for such bias, or to take
other steps to counter any bias that may in fact have existed among the venire. We
therefore VACATE Nieves’s conviction and REMAND to the district court for a
new trial.
3
BACKGROUND
I. The Government’s Case against Nieves
A. The Theory of the Case
In May 2019, Nieves – who also goes by the name Eric Rosario and the
moniker “White Boy” – was indicted on four counts: witness retaliation in
violation of 18 U.S.C. § 1513(b)(1) (Count One); conspiring with codefendant Elias
Polanco to commit witness retaliation in violation of 18 U.S.C. § 1513(f) (Count
Two); witness tampering in violation of 18 U.S.C. § 1512(b)(3) (Count Three); and,
again with Polanco, conspiring to commit witness tampering in violation of 18
U.S.C. § 1512(k) (Count Four).
Those charges stemmed from a February 2019 clash between Nieves and
Miguel Carela. Both men were members of the Trinitarios, a “violent gang” of
Dominican-American origin. App’x 126. The government’s theory was that
Carela’s decision to testify for the government in a separate 2018 criminal trial ran
afoul of the group’s strict “code of silence,” which includes a pledge not to
cooperate with law enforcement. App’x 630. Carela, again taking the stand in this
case, testified that after his 2018 testimony and subsequent release from prison, he
4
confided in two Trinitario peers that he “didn’t want to be part of that [Trinitarios]
life anymore.” App’x 255.
According to the government, Carela’s perceived disloyalty made him a
marked man. On February 5, 2019, after encountering Carela on a Bronx sidewalk,
Nieves pursued and physically confronted Carela, slashing Carela’s face with a
razor blade and running off with his wallet and sneakers. Although the parties
disputed some of these details at trial, including whether there was actually a
slashing or whether this was merely a fistfight, the basic fact that the two men
fought was not in dispute.
Rather, the trial centered on why they fought. While Nieves characterized
the incident as an unremarkable “Bronx street fight,” App’x 1004, the government
construed Nieves’s motivations as both retaliatory and proactive – i.e., as witness
retaliation (for Carela’s past cooperation) and witness tampering (to discourage
future cooperation). In support of that theory, the government elicited testimony
from Carela that Nieves told him in the midst of the fight that “[t]his is happening
to you for being a snitch.” App’x 265-66. According to Carela, he received phone
calls the next day from codefendant Polanco warning Carela to “take my name
out of your mouth” and threatening to “come over to where you are”; at one
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point, Nieves joined the call and told Carela that “[i]t was a good thing that that
had happened to [Carela], for being a snitch.” App’x 284, 288-90.
B. The Evidence at Trial
Trial began on April 14, 2021. The government’s case-in-chief centered
largely on the above testimony from Carela, along with general insight into the
Trinitarios from expert witness Detective Paul Jeselson. Jeselson walked the jury
through the Trinitarios’ written constitution, which lays out the group’s “code of
silence” and provides that “traitor[s]” who flout that rule will be “severely
punished.” App’x 630-32. Jeselson also discussed his general experience
investigating “hits . . . put out” by the Trinitarios, as well as “other violence,”
including “kidnappings, robberies, [and] shootings” by members of the group.
App’x 626. This dovetailed with Carela’s testimony concerning his direct
participation in Trinitario missions that involved shootings, assaults, murder, and
other crimes. Those themes resurfaced at closing, where the government
contended that Carela, himself a “violent gang member,” App’x 982, had been
targeted by the defendants because he was a “snitch” – as “corroborated” by
Jeselson’s testimony regarding the “nature and organization and rules of the
Trinitarios gang.” App’x 986-90.
6
For his part, Nieves’s defense consisted of brief testimony from two
witnesses: a probation officer who spoke about Carela’s post-incarceration
association with Trinitarios members and continued cooperation with law
enforcement, and a detective who had investigated Nieves’s assault and could not
recall Carela reporting any other assailants or subsequent threats. In closing,
Nieves’s counsel argued that Carela had lied about Nieves calling him a “rat and
a snitch,” and in so doing had “transformed a Bronx street fight into a federal
case.” App’x 1004-05.
C. Verdict and Sentence
Only two counts reached the jury. Prior to trial, the government abandoned
Count Two (conspiracy to commit witness retaliation). After the government
rested, the district court entered a judgment of acquittal on Count Three (witness
tampering). Ultimately, the jury found Nieves guilty on Count One (witness
retaliation), but acquitted both Nieves and Polanco on Count Four (conspiracy to
commit witness tampering).
In July 2021, Nieves was sentenced to 36 months’ imprisonment to be
followed by three years’ supervised release.
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II. Jury Selection
The jury selection process at the heart of this appeal took place in the
opening moments of trial proceedings.
A. The Parties’ Proposed Voir Dire Questions
Prior to trial, both sides proposed gang-related voir dire questions. The
government suggested asking whether prospective jurors or their families had
ever “been involved . . . with a case involving a gang or other racketeering
activity,” and whether the fact that this case “involves racketeering activity,
specifically, a gang” would affect their judgment. App’x 33. The defendants
recommended asking, among other similar inquiries, whether jurors had any
“particular interest” in “[s]treet gangs” or “street violence,” or any “personal
experiences or feelings arising from any acts of violence . . . that would affect your
impartiality in a case involving alleged gang violence.” App’x 50, 52. The
defendants also requested that the district court query whether any prospective
jurors “ha[d] any negative feelings, stereotypes, or opinions about Latino
Americans,” and whether they believed that “Latino American immigrants are
more likely to commit crimes than immigrants of [other] backgrounds,” along
with related questions about immigration. App’x 51.
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The parties also suggested that the district court question jurors about a
suite of other topics, including jurors’ feelings about law enforcement, their
educational and employment backgrounds, what they like to read and watch,
their families, and their hobbies. More generally, the defendants urged the district
court to individually question each prospective juror in a manner that “explores
specific concerns related to the circumstances of this case, and potential biases.”
App’x 43. A perfunctory individualized voir dire, they insisted, would be
“insufficient to ensure the defendants an impartial jury and a fair trial.” Id.The district court instead opted for a far swifter approach than either side
had advocated.
B. Voir Dire
At the outset, the basic format of voir dire was nothing out of the ordinary.
The court seated 12 initial prospective jurors to be questioned as a group and
directed the balance of the pool to “listen carefully to my questions, because some
of those people may be excused and then you may be called up in their place and I
don't want to have to repeat all of my questions.” App’x 59-60. As prospective
jurors were dismissed, the court confirmed that their replacements had heard its
initial questions and asked whether those questions raised “[a]ny other issues you
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need to respond to.” E.g., App’x 68.
The court then presented a high-level overview of the charges, without
referencing gangs:
The two defendants are named Christian Nieves and
Elias Polanco. They have been charged with conspiring
to threaten a government witness, named Miguel
[Carela]. And also, Mr. Nieves has been charged with
assaulting Mr. [Carela] in retaliation for Mr. [Carela’s]
testimony at a prior trial.
App’x 60. It next explained several foundational trial concepts, including the role
of a criminal jury, the presumption of innocence, and the reasonable doubt
standard, and asked whether any of the first 12 prospective jurors had doubts
about their ability to apply those basic principles. None answered. The court
continued: “Every once in a while there is a case – not usually this kind of case –
involving some other kinds of crimes that people have such strong feeling[s]
about that they don't think they could be fair.” App’x 60-61. Having explained “a
little bit about what this case is about,” the court then asked whether any jurors
had any doubts about their ability to be fair. App’x 61. Again, none answered.
Finally, the court asked whether prospective jurors or their loved ones had
any connection to the defendants, lawyers, or witnesses who would feature in the
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trial, any connection to various law enforcement agencies, any eyesight or
language impediments, any prior criminal charges, or any past experience as a
party to a civil lawsuit or as a juror in a criminal trial. When prospective jurors
raised their hands to answer in the affirmative, the court briefly followed up with
additional queries. That was the extent of the court’s generalized questioning.
The court’s three- or four-question individualized voir dire was similarly
brisk. It solicited each prospective juror’s (1) “county or borough” of residence; (2)
occupation; (3) “whether or not you have a significant other”; and (4) if so, the
significant other’s occupation. App’x 69. At a few points, the court asked
follow-up questions concerning specific law firms where jurors or their significant
others worked, the nature of a prospective juror’s company, and a college
student’s major. That was the extent of the court’s individualized questioning.
It was at this point – after the court announced to the venire that counsel
would now begin peremptory challenges – that defense counsel first objected. At
a sidebar, Polanco’s counsel urged the district court to “do some further inquiry of
these jurors” in line with the parties’ proposed questions, arguing that the
questioning thus far was not “enough . . . to make any cause challenges.” App’x
72. The court rebuffed the request: “after careful study,” it had “rejected” the
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suggested questions as either “inappropriate or otherwise not useful.” App’x 73. It
assured counsel that the “objection is preserved for appeal.” Id.When Nieves’s counsel specifically broached the topic of “gangs and the
Trinitarios” as a voir dire subject, the court responded that it had “thought about
that question, but I’m sorry, I’m not giving that question.” App’x 73. Nieves’s
counsel insisted that the questioning thus far was not “sufficient to allow us to
meaningfully exercise any peremptory challenges.” Id. The court responded that it
had a “long standing practice of not asking what might be called attitudinal
questions,” explaining that “I think that is an invasion of privacy and I also think
it is counterproductive and leads to colloquies.” Id. That ended the discussion.
The parties then proceeded to exercise their peremptory challenges based
on the information that had surfaced to that point. Throughout that process, the
court also dismissed several more prospective jurors for a range of reasons,
including language difficulties, personal ties to law enforcement or to incarcerated
relatives, familiarity with a witness, recent service as a government witness, and
recent criminal charges. Upon seating new prospective jurors at this stage, the
district court asked if they had any responses to its general questions and its four
individualized questions. In short order, a panel of twelve jurors had been
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finalized.
There was one last snag. One prospective alternate juror requested to be
excused “[d]ue to the nature of the charges.” App’x 88. At a sidebar, he explained:
“I just feel uncomfortable. My own biases. . . . I don’t know if they might be gang
members or . . . . I don’t feel comfortable being involved in such a case.” Id. The
court granted his request to be excused, but did not inquire if any other
prospective jurors had similar concerns. It would later explain that “part of my
concern was that jurors not feel any sense, during this trial, of intimidation or
potential fear or anything like that. It’s another reason why I didn’t put the
question that defense counsel had asked for about gangs.” App’x 217.
After excusing the juror who had expressed concerns about gangs, the court
separately dismissed three other prospective alternates based, respectively, on
religious concerns, professional ties to the U.S. Attorney’s Office, and personal ties
to incarcerated relatives. Shortly thereafter, twelve jurors and three alternates
were empaneled.
C. Nieves’s Mistrial Motion
After the jury was sworn but prior to opening statements, Nieves moved for
a mistrial, arguing that voir dire had been inadequate for several reasons,
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including: (1) that prospective jurors had been masked, as required under the
court’s COVID-19 protocols at the time, rendering counsel unable to assess their
demeanor; (2) that counsel had not had an opportunity to object to the court
dismissing jurors for cause because “things were moving extremely quickly”; and
(3) that thanks to the district court’s scant questioning, defense counsel had heard
many jurors say “maybe five or ten words” at most. App’x 117-18.
The district court quickly disposed of all three arguments. First, as to masks,
it remarked that a challenge based on a juror’s (hypothetically maskless)
appearance “would have been overruled by increasingly clear precedent as to
how not only irrelevant it is, but how it is just a cover for discrimination.” App’x
116-17. Next, as to counsel’s purported lack of opportunity to object to the court’s
dismissals for cause, it explained to counsel: “[Y]ou were right there. . . [a]nd you
sat there silently.” App’x 117.
Finally, as to the brevity of its questioning, the district court said: “Show me
where in the constitution or the laws of the United States that says you're entitled
to 30 words as opposed to 10.” App’x 118. It continued: “[T]his Court’s view is
that it needs to question the jurors sufficiently to make sure that any who need to
be excused for cause are excused,” and that all its questions “are directed towards
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that.” App’x 120. By contrast, its questions were intentionally not directed towards
“go[ing] beyond that and provid[ing] more than very basic details about the
persons who are being questioned.” Id.The court volunteered several justifications for that approach. Questions
asking for an “indication of the jurors’ attitudes” are not only an “invasion of
privacy,” it explained, but they also pose a “source of potential confusion” and
“most important[ly]” invite follow-up questions that “inevitably get the Court
into a description of the case in some way or another, which would be totally
improper.” App’x 120. Thus, the court explained, “I never give those questions.”
Id. Defense counsel clarified that he was not advocating “attitudinal questions,”
but rather “even a few questions that would elicit something about the jurors’
background,” such as “their education” or the “number of children they have.”
App’x 121. The court again brushed the notion aside, explaining that these sorts of
questions – “Do you read the New York Times? What is your favorite
newspaper?” – are not only a “clear invasion of privacy” but also “an exercise of
stereotyping of people.” Id.With respect to the specific gang-related questions that counsel had
requested, the district court further opined:
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[Y]ou can’t describe gangs in the abstract. There are
gangs and gangs. In order to ascertain whether a juror
had a meaningfully improper view or is biased because
the case involved gangs, which is the Court’s job when it
is looking to excuse someone for cause, the Court
would . . . inevitably have to get into the description of
the facts of the particular case. You could make it a little
abstract but it would still be that and that would be
totally improper. For all those reasons, but especially the
latter, I think those are not an appropriate role for the
Court.
App’x 120-21.
Defense counsel made one last-ditch appeal for questions that would
provide some “basis for exercising . . . peremptory challenges.” App’x 122. The
court replied: “Duly noted; denied.” Id. Trial then began.
DISCUSSION
The Supreme Court has recognized that the voir dire process “plays a
critical function in assuring the criminal defendant that his Sixth Amendment
right to an impartial jury will be honored.” Rosales-Lopez v. United States, 451 U.S.
182, 188 (1981) (plurality opinion). That is because an inadequate voir dire
compromises the trial court’s “responsibility to remove prospective jurors who
will not be able impartially to follow the court’s instructions and evaluate the
evidence.” Id. Therefore, notwithstanding the Constitution’s literal silence on the
16
matter, it is uncontroversial that “part of the guarantee of a defendant’s right to an
impartial jury is an adequate voir dire to identify unqualified jurors.” Morgan v.
Illinois, 504 U.S. 719, 729 (1992).
Still, “[d]espite its importance, the adequacy of voir dire is not easily subject
to appellate review.” Rosales-Lopez, 451 U.S. at 188. That is because the trial court,
“not unlike . . . jurors later on in the trial,” is best positioned to “reach conclusions
as to impartiality and credibility by relying on [its] own evaluations of demeanor
evidence and of responses to questions.” Id. To that end, district judges have long
been “accorded ample discretion in determining how best to conduct . . . voir dire”
pursuant to Rule 24 of the Federal Rules of Criminal Procedure. United States v.
Quinones, 511 F.3d 289, 299 (2d Cir. 2007), quoting Rosales-Lopez, 451 U.S. at 189.
Rule 24, in turn, sets forth broad, discretionary parameters. It permits the
district court to examine prospective jurors directly or to allow counsel to do so.
Fed. R. Crim. P. 24(a)(1). Where the district court itself examines the prospective
jurors, it requires that counsel be permitted either to “ask,” or “submit” for the
court to ask, “further questions that the court considers proper.” Fed. R. Crim. P.
24(a)(2).
17
I. Standard of Review
“Accordingly, we will not reverse unless we determine” that the district
court’s ample discretion “has been abused.” United States v. Lawes, 292 F.3d 123,
128 (2d Cir. 2002). A district court abuses its discretion when its decision
incorporates an “error of law,” rests on a “clearly erroneous factual finding,” or
“cannot be located within the range of permissible decisions.” Zervos v. Verizon
New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001).1 In this context, that deferential
standard applies to both the general “manner in which [voir dire] has been
conducted,” United States v. Salameh, 152 F.3d 88, 121 (2d Cir. 1998), and the
specific questions a district court elects to ask, or not to ask. See United States v.
Kyles, 40 F.3d 519, 524 (2d Cir. 1994); see also United States v. Tsarnaev, 142 S. Ct.
1024, 1034 (2022) (“A trial court’s broad discretion in this area includes deciding
what questions to ask prospective jurors.”).
1
Consequently, we have frequently pointed out that the term “abuse” of
discretion is an unfortunate misnomer. Despite its harsh connotations, it is
substantively “a nonpejorative term of art” that “implies no misconduct on the
part of the district court.” United States v. Bove, 888 F.3d 606, 607 n.1 (2d Cir.
2018).
18
II. The Court’s Duty to Screen for Bias
But that discretion is not boundless. “The standard set by the [Supreme]
Court, which remains the standard today, is that the trial court’s discretion must
be exercised consistent with ‘the essential demands of fairness.’” United States v.
Barnes, 604 F.2d 121, 137-38 (2d Cir. 1979) (footnote omitted), quoting Aldridge v.
United States, 283 U.S. 308, 310 (1931); see also United States v. Bright, No. 20-3792,
2022 WL 53621, at *1 (2d Cir. Jan. 6, 2022) (summary order) (reiterating this
standard). Even in that forgiving, deferential light, “the defense deserves ‘a full
and fair opportunity to expose bias or prejudice on the part of veniremen.’” United
States v. Colombo, 869 F.2d 149, 151 (2d Cir. 1989), quoting Barnes, 604 F.2d at 139.
Where the court finds that such bias or prejudice exists, a juror is subject to
dismissal for cause. United States v. Torres, 128 F.3d 38, 43, 46-47 (2d Cir. 1997)
(noting that dismissal is mandatory in some circumstances and discretionary in
others).
For-cause challenges are generally based on one of three species of bias: (1)
actual bias, or “bias in fact”; (2) implied bias, or bias that is “presumed as a matter
of law” where a typical person in the juror’s position would be biased,
irrespective of whether actual bias exists; and (3) inferable bias, which arises
19
“when a juror discloses a fact that bespeaks a risk of partiality sufficiently
significant to warrant granting the trial judge discretion to excuse the juror for
cause, but not so great as to make mandatory a presumption of bias.” United States
v. Greer, 285 F.3d 158, 171-72 (2d Cir. 2002) (internal quotation marks omitted).
Crucially, all three forms of bias must be “grounded in facts developed at
voir dire.” Torres, 128 F.3d at 47. A finding of actual bias arises “upon either the
juror’s own admission or the judge’s evaluation of the juror’s demeanor and
credibility following voir dire questioning as to bias.” Id. A finding of implied bias
arises from a “disclosed fact” that “establish[es] the kind of relationship between
the juror and the parties or issues in the case that mandates the juror’s excusal for
cause.” Id. Finally, a finding of inferable bias arises from “responses from the juror
that permit an inference that the juror in question would not be able to decide the
matter objectively.” Id.
To that end, even as voir dire challenges have historically not fared well in
this Court, we have often reiterated the basic principle that “[t]here must be
sufficient information elicited on voir dire to permit a defendant to intelligently
exercise” both for-cause and peremptory challenges. Colombo, 869 F.2d at 151,
quoting Barnes, 604 F.2d at 142. In other words, there must be sufficient
20
factfinding at voir dire to allow for facts probative of any of these forms of bias to
reveal themselves. Otherwise, “[f]undamental unfairness arises if voir dire is not
‘adequate . . . to identify unqualified jurors.’” United States v. Whitten, 610 F.3d
168, 185 (2d Cir. 2010) (second alteration in original), quoting Morgan, 504 U.S. at
729.
In United States v. Lawes, we sketched out three basic archetypes of voir dire
that falls short in this regard:
(i) a voir dire so demonstrably brief and lacking in
substance as to afford counsel too little information even
to draw any conclusions about a potential juror’s general
outlook, experience, communication skills, intelligence,
or life-style;
(ii) a failure to inquire about, or warn against, a
systematic or pervasive bias, including one that may be
short-lived but existent at the time of trial, in the
community that would have been cured by asking a
question posed by a party; or
(iii) a record viewed in its entirety suggesting a
substantial possibility that a jury misunderstood its duty
to weigh certain evidence fairly that would have been
clarified by asking a requested voir dire question.
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292 F.3d at 129 (internal citations omitted). Conspicuously, however, we have
never overturned a conviction based on a finding that a particular voir dire
actually fell within any of the Lawes categories.
III. Analysis
At the heart of this appeal is Nieves’s contention that his is the rare case that
does just that. He argues that the government’s case against him – which revolved
around his Trinitarios affiliation – implicated the second Lawes category: a
“systematic or pervasive bias . . . in the community” against people associated
with gangs. Id.We agree. We hold that (1) prejudice against people associated with gangs
represented a pervasive bias relevant to a key dynamic likely to arise at trial, and
(2) the district court neglected to “inquire about, or warn against,” that bias. Id.We address each point in turn.
A. Systemic or Pervasive Bias
In this case, voir dire took place on April 14, 2021, in Manhattan. At that
time, New York City was only beginning to emerge from a frenetically-publicized
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reported spike in violent crime that local2 and federal3 law enforcement had
broadly attributed to gang violence, including in large part to violence committed
by members of traditionally Latin-American gangs like MS-134 and the
Trinitarios.5 To be clear, the issue here is not whether the district court should
2
See, e.g., Ali Watkins, Violent Year in New York and Across U.S. as Pandemic Fuels
Crime Spike, N.Y. TIMES (Dec. 29, 2020), https://www.nytimes.com/2020/12/29/
nyregion/nyc-2020-crime-covid.html (“Police officials in New York have pointed
to gang disputes as a key driver of the violence over the summer . . . .”).
3
See, e.g., Acting United States Attorney Seth D. DuCharme Announces Expansion of
Strategies For Rapid Federal Response to Spikes in Gun-Related Violence in the Eastern
District of New York, U.S. ATTORNEY’S OFFICE FOR THE EASTERN DISTRICT OF NEW
YORK (Oct. 14, 2020), https://www.justice.gov/usao-edny/pr/acting-united-states-
attorney-seth-d-ducharme-announces-expansion-strategies-rapid (announcing a
cross-departmental initiative in response to the spike in gun violence, attributing
the “local epidemic of shootings in our city” in significant part to “violent gang
members” turning portions of the city into “battle zones” (internal quotation
marks omitted)).
4
See, e.g., MS-13's Highest-Ranking Leaders Charged with Terrorism Offenses in the
United States, U.S. ATTORNEY’S OFFICE FOR THE EASTERN DISTRICT OF NEW YORK
(Jan. 14, 2021), https://www.justice.gov/usao-edny/pr/ms-13-s-highest-ranking-
leaders-charged-terrorism-offenses-united-states (“MS-13 is responsible for a
wave of death and violence that has terrorized communities, leaving
neighborhoods on Long Island and throughout the Eastern District of New York
awash in bloodshed.” (internal quotation marks omitted)); Liz Robbins and
Michael D. Shear, Trump, Visiting Epicenter of MS-13 Killings, Demands Tougher
Immigration Laws, N.Y. TIMES (May 23, 2018), https://www.nytimes.com/2018/05/
23/us/politics/trump-immigration-gangs.html (“Mr. Trump again described gang
members as ‘animals . . . .’”).
5
See, e.g., Edgar Sandoval, Crime Wave Hits Bodegas, Threatening a Lifeline in the
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have inquired into this news coverage during voir dire. Rather, we cite this
coverage to illustrate the broader risk of prejudice against gang members (and
especially members of Latin-American gangs) among prospective jurors who may
have been affected by a reported surge in violence broadly attributed to the
precise kinds of organizations – and, notably, the precise gang – at the center of
the government’s case against Nieves. See Staehr v. Hartford Fin. Servs. Grp., Inc.,
547 F.3d 406, 425 (2d Cir. 2008) (recognizing that courts may take judicial notice of
Pandemic, N.Y. TIMES (Dec. 10, 2020), https://www.nytimes.com/2020/12/10
/nyregion/nyc-crime-bodegas.html (discussing a “steep rise” in New York City
violence that “shows no signs of slowing down,” and highlighting a Bronx
bodega murder committed by Trinitarios members as typical of that surge);
Clayton Guse and Rocco Parascandola, Teen Gang Member Busted for Threatening
Brooklyn Subway Riders with Machete, N.Y. DAILY NEWS (Mar. 25, 2021),
https://www.nydailynews.com/new-york/nyc-crime/ny-nyc-machete-subway-
teen-arrest-20210325-cba6hxk4jvh57lhz6ewdhv66e4-story.html (“[The suspect] is
a member of the Trinitarios gang, police said.”); Jorge Fitz-Gibbon, FBI Offers $5K
Reward for Arrest of Trinitarios Gang Member, N.Y. POST (Oct. 15, 2020),
https://nypost.com/2020/10/15/fbi-offers-5k-reward-for-arrest-of-trinitarios-gang-
member/ (“Eric Rosario, 28, a reputed member of the Trinitarios street gang
known as ‘White Boy,’ is sought for slashing a man in the face at Grand
Concourse and 196th Street on Feb. 3, 2019 . . . .”); Robert Gearty, The Gang Just as
Vicious as MS-13 but without the Notoriety: Savage Trinitarios Return to the Spotlight
after Years in the Shadows, FOX NEWS (July 28, 2018), https://www.foxnews.com/us/
the-gang-just-as-vicious-as-ms-13-but-without-the-notoriety-savage-trinitarios-re
turn-to-the-spotlight-after-years-in-the-shadows (equating the “[s]avage”
Trinitarios’ “brutality” with that of MS-13).
24
the fact that news articles and their contents exist, without respect to the truth of
those contents).
Of course, we have never required district judges to sua sponte curate an
exhaustive catalog of every bias that a prospective juror could conceivably track
into court. And our holding today does not suggest otherwise. That is because –
even setting aside the government’s concession at oral argument that it would be
reasonable to expect a court to be aware of this context without the parties
specifically presenting it – it is undisputed that the district court was in fact well
aware of the risk of gang-related bias in this case.
For one thing, it was told of the risk. As a preliminary matter, the district
court had long been on notice that the government’s theory of the case was that
Nieves and Polanco had targeted Carela specifically because of the Trinitarios’
“‘zero-tolerance’ policy towards members of their gang who cooperate with law
enforcement.” Gov’t Opp’n Br. 1, SDNY Dkt. No. 50. It bears reiterating that
Nieves was not charged with simple assault, and that it was undisputed that the
run-in with Carela in fact occurred. Instead, Nieves was charged specifically with
witness retaliation and intimidation, both of which hinge on why the fight (and
25
surrounding events) occurred. As the district court knew well, the government’s
answer to that question was simple: gang affiliation. See id. at 1-4.
Accordingly, prior to trial, both the defense and the government requested
questions specifically concerning gangs in their proposed voir dire submissions.
Two of the eleven questions in the portion of the government’s proposed voir dire
entitled “Ability to Render a Fair and Impartial Verdict” asked, respectively,
about any past involvement with “case[s] involving a gang” and whether the fact
that this case involved “a gang” would “affect your ability to be fair and impartial
in this case.” App’x 32-33. Twice as many of the defendants’ proposed voir dire
questions explicitly referenced gangs, including whether prospective jurors had
“any personal experiences or feelings arising from any acts of violence that might
impact the way you think and feel about this case, or that would affect your
impartiality in a case involving alleged gang violence.” App’x 52. While a request
from counsel – “even all counsel” – that a particular subject be explored during
voir dire does not obligate the district court to do so, Lawes, 292 F.3d at 128, a
court can hardly be considered ignorant of a risk that both sides have presented as
worthy of its attention.
26
Moreover, the district court was reminded of that risk by defense counsel’s
repeated objections prior to trial. And its on-the-record responses are telling. At
the outset, it explained that the decision not to ask about gangs was neither an
oversight nor an unconsidered rejection: “I thought about that question, but I'm
sorry, I'm not giving that question.” App’x 73.
Its subsequent elaborations make clear that it was perfectly aware how
fraught the topic of gangs could be for prospective jurors. It recognized, for
example, that jurors might feel “intimidation or potential fear” based on the fact
that the case involved gangs and gang members. App’x 217. And it not only noted
the possibility that a juror could harbor “a meaningfully improper view” or
indeed “bias[] because the case involved gangs,” but it acknowledged that it “is
the Court's job when it is looking to excuse someone for cause” during voir dire to
“ascertain” whether that is in fact the case for any particular juror. App’x 120-21.
The court’s rationale for how it approached that job was not to discount the risk of
bias against gang members, but rather to insist that “you can’t describe gangs in
the abstract” and that it would be “totally improper” to “get into the description
of the facts of the particular case.” Id.27
Importantly, then, no one – not the district court, not the government, and
certainly not Nieves – has disputed that the prospect of bias against gang
members was sufficiently “pervasive” in the community at the time of trial to
implicate the second Lawes category. See 292 F.3d at 129. The government itself
proposed questions to ward off that risk, and on appeal does not retreat from its
stance below that such questions would have been prudent. At best, it now argues
that Nieves “did not make a record below” of that risk, and therefore that the
district court’s approach should be reviewed for plain error. Appellee’s Br. 21.
But, to start, that argument overstates Nieves’s obligations under Rule 51 of
the Federal Rules of Criminal Procedure; the defendants preserved the issue for
appellate review by requesting gang-related questions and objecting to their
omission on the grounds that “gangs and the Trinitarios” would be key concepts
at trial, and that the district court’s approach compromised defense counsel’s
ability to make for-cause challenges. App’x 72-73; see Holguin-Hernandez v. United
States, 140 S. Ct. 762, 764 (2020) (“[A] party may preserve a claim of error by
informing the court . . . of [1] the action the party wishes the court to take, or [2]
the party’s objection to the court’s action and the grounds for that objection.”
(second alteration in original) (quoting Fed. R. Crim. P. 51(b)); see also United States
28
v. Garcia, 291 F.3d 127, 140 (2d Cir. 2002) (“We presume that the objection of a
co-defendant is an objection for all defendants, and it is sufficient to preserve the
issue for appeal.”).
And more fundamentally, although it is true that Nieves did not specifically
document below the presence of gang-related bias in the community, there was
simply no need to. The parties already agreed that the venire should be
questioned about their feelings on gangs. The district court, in turn, quickly made
clear that it understood the risks posed by possible juror reactions to gangs – and
that its decision not to mention gangs during voir dire was attributable neither to
ignorance of those risks in general, nor to a factual finding that the risks did not
exist in this case, but rather to other justifications that we discuss and reject below.
The absence of dissent as to the prospect of bias against gang members is
entirely unsurprising. In our view, it would have been obvious to anyone living in
the New York City area at the time that there was a serious risk that jurors tasked
with impassively assessing the credibility of the anticipated testimony from
Carela and Detective Jeselson concerning the Trinitarios, and impartially applying
that testimony to defendants associated with that organization, would have some
difficulty maintaining an open mind while doing so. It would have been obvious
29
that prospective jurors might be predisposed to condemn Nieves by association
because the specific thing he was associated with had long (and particularly in the
months preceding trial) been the persistent target of an onslaught of local and
national media reports reciting the violent practices of groups like the Trinitarios –
much of it stimulated by pronouncements from members of the very executive
branch conducting Nieves’s prosecution.
In short, as other Circuits have acknowledged in a variety of contexts, it
would have been obvious here that there was a significant “possibility that a jury
will attach a propensity for committing crimes to defendants who are affiliated
with gangs or that a jury’s negative feelings toward gangs will influence its
verdict.” United States v. Irvin, 87 F.3d 860, 865-66 (7th Cir. 1996) (adding that
“[g]uilt by association is a genuine concern whenever gang evidence is admitted,”
and concluding that the district court had erred by admitting certain gang-
affiliation evidence); see United States v. Easter, 66 F.3d 1018, 1021 (9th Cir. 1995)
(affirming a conviction where the district court “took several steps to minimize
possible prejudice” including “prob[ing] potential jurors, during voir dire, on the
issue of bias due to gang affiliation” and “dismiss[ing] three potential jurors who
indicated that such evidence might influence their deliberations”); United States v.
30
Smith, 919 F.3d 825, 831, 834-35 (4th Cir. 2019) (affirming the denial of a mistrial
where the district court made “appropriate inquiries into juror bias” after
members of the jury had expressed mid-trial anxiety in response to evidence of a
gang’s “violent nature”).
Accordingly, we hold that under the circumstances presented in this case,
Nieves’s alleged gang association was a “material issue” likely – indeed, certain –
to arise at trial as the cornerstone of the government’s theory of motive, and that
there was a significant risk that potential “strong feelings” concerning gangs
would “skew deliberations in fact.” Barnes, 604 F.2d at 137-39 (internal quotation
marks omitted). Therefore, because the risk of juror prejudice arising from bias
against gang members was both significant and apparent to the district court, it
was outside of the court’s discretion to altogether decline to protect against that
risk.
B. The District Court’s Failure to Adequately Screen for Bias
Having established that much, we must next decide whether the manner in
which the district court conducted voir dire sufficiently accounted for that risk.
We hold that it did not.
31
We start with what a district court is required to do. A district court must
“permit at least some questioning” – with nearly limitless discretion as to what
that questioning may look like – “with respect to any material issue that may
arise, actually or potentially, in the trial.” Barnes, 604 F.2d at 137 (emphasis
added).
Our decisions illustrate the range of options available to the district court.
In these decisions, as is often the case in voir dire appeals, the defendants have
targeted specific choices made by the district court during voir dire, arguing that
those choices failed to protect against a specific risk of bias. In affirming, we have
typically relied upon the fact that each district court accounted for that risk in
some other permissible way.
For example, in United States v. Treacy, which also concerned Judge Rakoff’s
voir dire practices, we held that his “categorical” policy never to use written
questionnaires during voir dire was “well within his bailiwick as a trial judge so
long as he conducts adequate voir dire by some other means.” 639 F.3d 32, 47 (2d
Cir. 2011). We concluded that the judge had sufficiently accounted for concerns
about jurors’ “potential prejudice against people associated with Wall Street” by
asking (1) whether jurors “could be fair and impartial in a securities or stock fraud
32
case involving a former [executive]”; (2) whether they or their loved ones “had
ever received any stock options”; (3) whether they or their loved ones “owned
stock in or were associated with” the defendant executive’s company; and (4)
whether any prospective jurors “had been exposed to any pretrial publicity about
the case.” Id. at 36-37. Thus, we concluded, even after eschewing a written
questionnaire containing inquiries that “pertained specifically to the jurors’
experiences with and views of the financial sector,” the district court had
permissibly found another way to screen for the relevant bias. Id. at 36.
In United States v. Rahman, we affirmed a variety of terrorism-related
convictions against primarily Muslim and Arab defendants accused, among other
things, of conspiring to bomb New York City landmarks. 189 F.3d 88, 104 (2d Cir.
1999). On appeal, we rejected the defendants’ argument that the district court’s
voir dire had not accounted for a range of potential biases among the venire; we
noted that the district court had asked not just whether each defendant’s religion
or ethnicity would compromise jurors’ impartiality, but also “more subtle,
detailed questions” about jurors’ “personal experiences” such as “whether they or
their loved ones regularly use the Holland and Lincoln Tunnels and the George
Washington Bridge.” Id. at 121.
33
Three of our recent summary orders have conformed to that same template.
In United States v. Miller, we acknowledged that it might have been “helpful” to a
defendant on trial for visa fraud for the district court to have inquired during voir
dire about jurors’ occupations, relationships to law enforcement personnel, and
“views on immigration or visa fraud generally.” 752 F. App'x 51, 52-54 (2d Cir.
2018) (summary order). Nonetheless, we held that the decision not to ask those
questions was permissible because the district court had instead screened for
relevant biases in other ways, including by: (1) explaining to the venire that the
defendant was “charged with fraudulently obtaining a non-immigrant visa that
he then used to enter the United States from Jamaica”; (2) posing several questions
on that subject, including questions about jurors’ “experience with the visa
process [and] relationships with law enforcement and immigration authorities”;
and (3) asking whether the nature of the case, which the court had explained in
some detail, “would affect [jurors’] ability to impartially assess the evidence.” Id.
at 53-54.
Similarly, in United States v. Diaz, we rejected an appeal centered on the
district court’s decision not to ask a “proffered voir dire question concerning
implicit racial bias,” emphasizing that the district court “did question the potential
34
jurors on the issue of racial prejudice” in other ways, including by warning
prospective jurors that “it would be improper for any of you to consider any
personal feelings you may have about a defendant’s race, religion, national origin,
sex, or age” and then immediately asking whether any of the venire would “have
any difficulty putting aside any feelings, positive or negative, about the
defendant . . . based on these considerations.” 854 F. App’x 386, 388-89 (2d Cir.
2021) (summary order) (emphasis in original) (internal quotation marks omitted).
Most recently, in United States v. Bright, we rejected a defendant’s argument
that the district court had impermissibly declined to inquire about jurors’
“possible prejudices against people who pursue nonconventional sexual practices
and fetishes, including age-based role play.” No. 20-3792, 2022 WL 53621, at *1 (2d
Cir. Jan. 6, 2022) (summary order). Again, we underscored that “even assuming
arguendo that the district court was required to question jurors about the
potential biases that [the defendant] identifies, the record reflects that the court
did, in fact, do so” in other ways, including by “describ[ing] the non-conventional
sexual practice that [defendant] was concerned about – ‘age-based role play’ –
nearly verbatim from his definition of the term,” and inquiring whether “evidence
involving age play” would prevent jurors from being fair and impartial. Id.35
Together, these cases animate the unremarkable but critical proposition that
the district court must provide some opportunity for prospective jurors to be
meaningfully screened for biases relevant to a particular defendant or the charges
against that defendant. Or, as the Rahman panel put it, a district court’s decision
not to ask certain questions probative of bias “will not be grounds for reversal” so
long as voir dire otherwise “‘covers the subjects’ that may arise in the case to
ensure that jurors will be impartial.” 189 F.3d at 121 (alterations omitted), quoting
Aldridge, 283 U.S. at 311.
Deciding precisely how to do so remains within the district court’s
expansive voir dire discretion. It could, of course, inquire directly about relevant
biases. See, e.g., Bright, 2022 WL 53621, at *1. But we have never reversed for
failure to take that specific path, and again refrain from doing so today.
There are many other tacks a district court might justifiably deem more
prudent under the particular circumstances of a case. For example, it could opt
instead to ask the kind of “subtle[r]” questions that we endorsed in Rahman,
sussing out relevant bias without explicitly invoking it. See, e.g., 189 F.3d at 121. It
could ask generalized questions about jurors’ ability to serve impartially,
provided that it also presents sufficient context about the case for jurors’ answers
36
to that general question to actually convey information pertinent to the relevant
potential biases in that case. See, e.g., Miller, 752 F. App’x at 52-54. It could warn
jurors of their general duty of impartiality, again assuming it also provides
sufficient context for a juror to be able to self-identify the relevant biases before
jury selection is complete. See, e.g., Diaz, 854 F. App’x at 388-89; see also Treacy, 639
F.3d at 47 (“[A] district court may find that warning a jury against an improper
bias may be more effective in some cases than inquiring about that bias.”). And,
although we decline Nieves’s invitation to so declare in this case,6 even if the
district court does none of these things, it may even be the case that it can
6
Nieves argues that this case triggers not just the second Lawes category, but also
the first: “a voir dire so demonstrably brief and lacking in substance as to afford
counsel too little information even to draw any conclusions about a potential
juror’s general outlook, experience, communication skills, intelligence, or
life-style.” Lawes, 292 F.3d at 129. We disagree. Although we hold that the district
court’s brief, three- or four-question individualized voir dire did nothing to
affirmatively cure its larger failure to adequately screen for bias against gang
members, we do not conclude that the limited scope of questioning concerning
prospective jurors’ backgrounds in itself constituted reversible error. Judicial
efficiency is an important value in busy district courts, and district judges are
best positioned to balance that value against the benefits of extensive voir dire.
While many – perhaps most – judges would perhaps strike a different balance,
and some might lean heavily in the direction of extensive voir dire, we can
discern no quantitative standard governing precisely how many questions are
required to give the parties a sense of jurors’ possible biases.
37
accomplish this end – or at least render harmless7 the failure to do so – by asking
7
The government does not argue that the failure to inquire on voir dire about
venire members’ attitudes towards gang members, if error, was harmless. But
even assuming arguendo that the district court’s voir dire errors could be
rendered harmless by other steps taken outside of voir dire – a hypothetical
question that we do not decide today, cf. Tankleff v. Senkowski, 135 F.3d 235, 248
(2d Cir. 1998) (“[A] Batson/Powers claim is a structural error that is not subject to
harmless error review.”) – it did not take any such steps here. It did not, for
example, give any limiting instruction with respect to Jeselson’s expert gang
testimony, nor did its pre-deliberation jury instructions deal with gang-related
members in any way (or even refer to gangs specifically). Cf. Tsarnaev, 142 S. Ct.
at 1035 (holding that the district court’s voir dire was sufficient, highlighting jury
instructions “the court gave during voir dire and repeated during the trial”).
Separately, without expressly invoking the concept of harmless error, the
government argues that even if jurors biased against gang members were
selected, both sides would have been equally affected. That is because, it
contends, any biased juror’s perception of the credibility of victim-witness
Carela, himself a Trinitario, would suffer as much as that juror’s perception of
Nieves. That argument is both speculative and ill-conceived. Gang membership
might affect perceptions of credibility, or it might predispose a jury to believe
that a gang member charged with a violent crime is a dangerous person who
deserves to be locked up notwithstanding doubts about whether the government
has actually proved each element of the charged crime beyond a reasonable
doubt. There is no reason to believe that those biases would cancel each other
out, or that jurors biased against a defendant should be seated so long as they are
equally biased against a victim or a witness. In any event, the government’s
reliance on Rosales-Lopez, 451 U.S. at 192-93, to support this otherwise speculative
argument is misplaced. In that case, the Supreme Court held that there was no
“reasonable possibility that racial or ethnic prejudice” would have influenced the
jury’s treatment of a defendant of Mexican descent charged with “aiding
members of his own ethnic group to gain illegal entry into the United States.” Id.But the Court’s justification for that conclusion was not that all of the people
involved shared the same potentially bias-inducing characteristic. Rather, it
38
sufficiently detailed questioning to allow defendants to indirectly “ferret out more
subtle biases” through peremptory challenges based on circumstantial indicators of
bias. Torres, 128 F.3d at 43 n.4.
Here, the district court’s deliberate decision to jettison any of those options
exceeded the bounds of its discretion. It did not ask – overtly or otherwise – about
gang-related bias, notwithstanding that the government’s central theory of the
case was that the assault was motivated by gang rules, and its evidence in support
of that theory consisted of gang-member testimony and gang-related expert
testimony. The court in fact deliberately declined to mention that the case
concerned gangs at all, or at least to caution the jurors that any feelings they might
have about gangs or gang members must be set aside in service of their duty to
decide, based on the evidence presented, whether the government established all
elements of the charged crimes beyond a reasonable doubt. Even after a
prospective juror volunteered his own discomfort and “biases” stemming from
the mere possibility that the case could involve gangs (and was thereafter
emphasized that the district court had not only asked a question about “aliens” in
general, which “jurors would have understood . . . to at least include Mexican
aliens,” but had also dismissed two jurors for cause based on their answers to
that question. Id. at 193. There is no analog to that question in this case.
39
dismissed), the district court neglected to allow for the possibility that others’
impartiality could be compromised by the fact that all the central players in the
case belonged to allegedly violent gangs, and for that matter, that the defendants
were accused of retaliation and intimidation specifically related to court
proceedings. Cf. Smith, 919 F.3d at 834 (rejecting defendants’ challenge to “how
[the district court] addressed the jurors’ fears of gang retaliation,” highlighting
that “[a]fter learning of Juror No. 5’s fears, the district judge here questioned each
juror individually . . . and, where necessary, followed up”). Given those choices,
there was no way for the district court’s generic questions and vague warnings to
actually root out, or otherwise guard against, the specific bias against gang
members potentially at play in this case.
Nor, as a last resort, did the district court attempt to counterbalance any of
this by asking additional biographical or attitudinal questions that might have
circumstantially unearthed inferable bias among potential jurors, permitting
either the court to dismiss them for cause, or Nieves to exercise his peremptory
challenges to the same effect. For example, the district court might have asked not
simply what borough or county each juror was from, but what specific areas in
each borough or county jurors hailed from, which could have permitted the
40
defendants to use their peremptory challenges to dismiss jurors who lived in
places known to be Trinitario strongholds. Or, in lieu of the open-ended
questioning on media consumption that it considered invasive, the district court
might have asked whether prospective jurors had read news stories concerning
the reported crime surge in New York City. A question like that would have
permitted follow-up that might have surfaced gang concerns, in turn occasioning
the court to caution jurors that they must set aside preconceived notions about
gangs when assessing the evidence in this case, and to dismiss those jurors unable
to heed that warning; at the very least, it would have permitted defense counsel to
peremptorily weed out jurors they deemed most problematic. We, again, do not
hold that the district court was required to ask these specific questions, nor that its
failure to do so was error on its own, nor even that asking these questions would
have been sufficiently curative in this case. We offer these examples merely to
illustrate some of the tools available to district courts in these situations. Here, the
district court availed itself of none of those tools.
That was no accident. The district court reiterated multiple times that it
would be “improper” not just to ask gang-related questions, but also to offer the
venire any description of the case other than an abstract definition of the statutory
41
charges. It dismissed the notion that it was obligated to solicit any information
beyond what was necessary to ensure that “any [jurors] who need to be excused
for cause are excused.” App’x 120. And while Nieves argues that this statement
disregarded the court’s accompanying obligation to also facilitate informed
peremptory challenges, see Mu’Min v. Virginia, 500 U.S. 415, 431 (1991), the more
problematic fault was the court’s exceedingly narrow take on its obligation to
probe for information relevant to for-cause challenges. Even as the court
acknowledged its for-cause factfinding role, it insisted that its hands were tied:
“In order to ascertain whether a juror had a meaningfully improper view or is
biased because the case involved gangs, which is the Court’s job when it is looking to
excuse someone for cause, the Court would . . . inevitably have to get into the
description of the facts of the particular case . . . and that would be totally
improper.” App’x 120-21 (emphasis added).
As a proposition of law, if not of the district court’s own preference, that
statement is simply inaccurate. See Zervos, 252 F.3d at 169 (a district court abuses
its discretion when its decision relies upon an “error of law”); see also Fed. R.
Crim. P. 24(a)(2)(B) (“If the court examines the jurors, it must permit the attorneys
for the parties to submit further questions that the court may ask if it considers
42
them proper.”). District courts routinely give such descriptions without appellate
rebuke, and this Court has relied upon that practice in rejecting defendants’
arguments concerning the adequacy of voir dire. See, e.g., Miller, 752 F. App’x at
53. We cannot endorse the district court’s apparent belief that it would be “totally
improper” to describe the essence of a case to the jury. App’x 120. That view is
inconsistent not only with our frequent approval of just that sort of description,
but also with our requirement in Lawes that the district court’s voir dire “inquire
about, or warn against,” any widespread and relevant bias. 292 F.3d at 129. In
most cases, any meaningful inquiry or warning will be impossible without some
identification of the facts likely to evoke that bias.8
Judge Rakoff’s past voir dire choices reflect as much. Despite Nieves’s
attempts to attribute Judge Rakoff’s suggestion that a question or description
concerning gangs would have been improper to a larger pattern of purportedly
“inflexible” voir dire practices, Appellant’s Br. at 27, Judge Rakoff himself, as
discussed above, has asked precisely the kinds of questions he declined to ask
here, and this Court has approved his doing so. In Treacy, Judge Rakoff did not
8
While we are of course mindful not to over-parse a district court’s spontaneous,
on-the-record remarks, we highlight this one because it is emblematic of the
court’s larger error in this case.
43
simply advise potential jurors that the case to be tried generally involved
allegations of fraud; to the contrary, he specifically asked jurors “whether they
could be fair and impartial in a securities or stock fraud case involving a former
chief operating officer and president of [a public company].” 639 F.3d at 36. That
question was in no way improper, and is indistinguishable from asking whether
venire members could be fair and impartial in a case involving an alleged gang
member.
The district court’s other rationales were no more persuasive. For instance,
it later explained that, in its view, invoking gangs before trial could contribute to
jurors feeling “intimidation or potential fear” during trial.9 App’x 217. At no point,
9
The government suggested at oral argument that although the district court’s
overview of the charges did not expressly mention gangs, any prospective juror
who already harbored strong feelings regarding gang members would have
understood the court’s description of the defendants’ “conspiring to threaten,”
and Nieves’s “assault in retaliation” against, a government witness as a
description of gang behavior, or at least as behavior just as likely to incite those
same strong feelings. But that theory cuts against the government’s briefed
argument – that the district court reasonably felt that broaching the topic of
gangs in any form “might do more harm than good.” Appellee’s Br. 36. The
government cannot have it both ways. Either the district court ducked the subject
or it did not. In any event, we are not at all convinced that the district court’s
recitation of the statutory charges against the defendants somehow signaled to
biased jurors that this was a gang case, or some other kind of case that would
similarly test their impartiality. That certainly was not the district court’s intent:
for better or worse, the district court insisted that any allusion whatsoever to
44
however, did it explain how that dynamic would be assuaged by stifling any
mention of gangs until, as it turned out, the second sentence of the government’s
opening statement – early enough to color jurors’ perception of everything they
would hear afterwards, but too late to filter any fear-driven bias from their ranks.
Nor did the court offer any justification for its decision to affirmatively
represent to the venire that this was not the kind of case that would typically
provoke prejudice or bias. “Every once in a while,” it intimated, “there is a case –
not usually this kind of case – involving some other kinds of crimes that people have
such strong feeling[s] about that they don’t think they could be fair.” App’x 60-61
(emphasis added). As we have already discussed, that also was simply incorrect.
Shortly after the district court made those remarks, one juror spontaneously
voiced concerns about serving in a case potentially involving gangs. That can only
have vindicated the district court’s own belief that, as it expressed later, fear or
bias surrounding gang members could be a factor in the case. But avoiding
mention of gangs until the subject inevitably and expectedly headlined the
government’s opening, and much of its key evidence, was never going to
somehow suppress the kinds of emotional reactions that could have been detected
gangs risked spooking the venire. App’x 217.
45
by appropriate voir dire questions, and thereafter mitigated either through
cautionary instructions or disqualification of jurors unable to fairly assess the
evidence.
Relatedly, the district court’s reluctance to ask either “attitudinal” questions
or other questions that it considered invasive cannot justify its refusal to inquire
about attitudes towards gang members. It is within a judge’s discretion to decide
whether or not to ask questions that elicit jurors’ general attitudes about political
or social questions, permitting counsel to speculate about jurors’ reactions to the
evidence in a case when allocating their peremptory challenges. But where the
“attitude” in question is a bias or predisposition for or against one side or the
other, and particularly where key evidence targets the subject of that bias or
predisposition, it is the judge’s responsibility to make some inquiry. Prospective
jurors have no right to keep those attitudes private. Here, the jury would be
tasked, among other things, with assessing the credibility of Carela’s and
Detective Jeselson’s insights into the rules and practices of the Trinitarios, and the
effect those rules and practices may have had on Nieves’s (disputed) motivation
for his (largely undisputed) conduct in this case. Any predisposition, based on
46
extra-judicial information or prejudice, to believe or disbelieve that sort of
testimony was therefore entirely relevant to jurors’ ability to do their job.
In short, in our view, a capable and experienced district judge faced with an
admittedly tricky task made the wrong call for the wrong reasons. As Judge
Pooler wrote in dissent in Lawes, “[i]f any set of facts presents an abuse of
discretion in the administration of voir dire, it is this case.” 292 F.3d at 132 (Pooler,
J., dissenting). That perspective did not prevail under the circumstances presented
in Lawes. It does under those presented here. Although we do not doubt the
sincerity of the district court’s belief that it was charting the most appropriate
course, it is difficult for us, sitting in review, to imagine what less it could have
done to guard against potential bias against gang members, even as the court
itself acknowledged that the issue warranted close attention. Like Judge Pooler,
we “do not advocate that the trial judge was required to ask any particular
questions”; rather, the error was the district court’s resolve not to “ask any
question” that might uncover potential predispositions against gang members, or
to provide sufficient context to allow its broader questions and warnings to
encompass concerns about such bias, therefore leaving that potential prejudice
“completely unexplored.” Id. (emphasis in original).
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Because the district court’s failure on voir dire to explore, or to take other
steps specifically to counter, such potential prejudice unfairly deprived Nieves of
the opportunity to unearth a pervasive bias relevant to an issue pivotal to the
government’s case against him, we hold that the district court abused its
discretion.
CONCLUSION
For the reasons set forth above, we therefore VACATE the district court’s
judgment and REMAND for a new trial.
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