     12-2010-cr
     United States v. Moran-Toala



 1                        UNITED STATES COURT OF APPEALS

 2                              FOR THE SECOND CIRCUIT

 3                                    August Term, 2012

 4   (Argued: June 20, 2013                           Decided: August 12, 2013)

 5                                  Docket No. 12-2010-cr

 6                   -------------------------------------

 7                            UNITED STATES OF AMERICA,

 8                                        Appellee,

 9                                          - v -

10                              ELIZABETH MORAN-TOALA,

11                                  Defendant-Appellant.

12                   -------------------------------------

13   Before:      CALABRESI, CABRANES, and SACK, Circuit Judges.

14                Appeal from a May 10, 2012 judgment of the United

15   States District Court for the Eastern District of New York

16   (Frederic Block, Judge), after a jury trial, convicting

17   Elizabeth Moran-Toala of conspiracy to exceed authorized

18   access to a government computer in furtherance of a

19   narcotics conspiracy in violation of 18 U.S.C. §§ 371 and

20   1030(c)(2)(B)(ii).             The jury acquitted her of narcotics

21   conspiracy charges, however, after the district court

22   instructed the jury in effect that it was permitted to

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

 2   harmless.

 3               Vacated and remanded.

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

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

13   SACK, Circuit Judge:

14               Although juries are supposed to render verdicts

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

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

17   criminal defendant cannot exploit any such inconsistency in

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

19   presents not a direct challenge to inconsistent verdicts,

20   but instead a related question: whether the district court

21   erred when it instructed the jury in effect that it was

22   permissible to render inconsistent verdicts, and whether, in

23   light of that instruction, the jury verdicts and judgment

24   based thereon can stand.1


         1
           The government concedes (and we agree) that in light
     of the fact that the jury acquitted the defendant of one of
     the conspiracy charges, no matter how that acquittal was
     affected by the court's supplemental instruction, the
     judgment of acquittal on that charge cannot be appealed

                                     2
 1                               BACKGROUND

 2              From February 2003 to October 2007, Defendant

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

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

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

 6   Analytical Unit," which required her to review flight

 7   manifests to identify airline passengers who were suspected

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

 9   Moran-Toala cross-checked names in a database known as the

10   Treasury Enforcement Communications System ("TECS"), which

11   collects information from thousands of databases, including

12   those containing flight and travel information, border

13   crossings, reports of seizures of contraband, criminal

14   history information, outstanding warrants, and motor vehicle

15   records.   CBP officers are prohibited from "browsing" the

16   TECS database for personal reasons or for information

17   otherwise unrelated to official business, and they must

18   complete various privacy awareness training courses in order

19   to understand these obligations.




     because, under protections afforded to the defendant by the
     Double Jeopardy Clause of the Fifth Amendment, the charge
     could not in any event be pursued by the government on
     remand. See U.S. CONST. amd. V.

                                     3
 1             The Eastern District of New York Conspiracy

 2             In 2005, Immigration and Customs Enforcement

 3   agents began investigating a suspected narcotics conspiracy

 4   involving Jorge Espinal, a Delta Airlines baggage handler at

 5   New York's John F. Kennedy Airport.     Law enforcement agents

 6   obtained a judicially-authorized wiretap on Espinal's phone,

 7   which disclosed that Espinal was working with a New York-

 8   based narcotics distributor named Henry Polanco.     Espinal

 9   told Polanco that because he was a luggage-ramp supervisor,

10   he could intercept shipments of narcotics from Delta planes

11   arriving at the airport, and that such shipments would not

12   be screened on arrival by CBP agents.     Polanco arranged for

13   a supplier in the Dominican Republic to hide packages

14   containing cocaine, heroin, and ecstasy on many Delta

15   flights that traveled directly from Santiago, in the

16   Dominican Republic, to New York.     CBP agents ultimately

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

18   are pertinent to Moran-Toala's case.

19             First, Espinal and Polanco arranged for a backpack

20   containing heroin and cocaine to be stashed on a February

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

22   York.   CBP agents seized the backpack before Espinal could

23   retrieve it.   Espinal did not immediately realize that the

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

                                   4
 1   it turned out, that the bag had been placed on the

 2   international baggage carousel, and then in unclaimed

 3   baggage, but that he, Espinal, was trying to get it back.

 4            The Dominican supplier became concerned about

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

 6   Espinal and Polanco had stolen the drugs.   The supplier

 7   demanded that Espinal and Polanco return the shipment or pay

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

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

10   girlfriend worked for the government and that she had access

11   to [seizure of contraband] information," so "he was going to

12   tell her to get the information of the seizure to prove

13   . . . that the seizure was real."   Trial Transcript ("Trial

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

15   14, 2006, three days after the shipment went missing, Moran-

16   Toala used TECS to access the seizure report for the

17   backpack in question.

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

19   agents knew that Espinal and Polanco had arranged for a

20   "mule"2 named Henry Cabrera to carry a suitcase containing

21   narcotics on an August 24, 2007 Delta flight from the


         2
            "In the quaint jargon of the narcotic trade,
     individuals who smuggle narcotics on their persons are known
     as 'mules.'" United States v. Vivero, 413 F.2d 971, 972 n.1
     (2d Cir. 1969) (per curiam).

                                   5
 1   Dominican Republic to JFK Airport.    The agents planned to

 2   arrest Cabrera as he exited the plane.    While they were

 3   waiting for the flight to arrive, they saw Espinal attempt

 4   to enter a sterile area, apparently to meet Cabrera and take

 5   the suitcase before Cabrera reached customs screening.

 6   Espinal reported to Polanco that the heavy law enforcement

 7   presence prevented him from meeting Cabrera and that he did

 8   not know what happened to the suitcase, but Polanco

 9   suspected that Espinal had stolen the drugs.    Again, Espinal

10   said that he would contact his girlfriend to confirm that

11   Cabrera had been arrested as he deplaned, as proof that the

12   drugs were seized by law enforcement, and not stolen.

13            On August 29, 2007, Moran-Toala again used TECS to

14   access Cabrera's arrest report.    According to her telephone

15   records, on the morning of August 30, 2007, Moran-Toala

16   placed a telephone call to the phone located at Espinal's

17   work station at JFK Airport.

18            In addition, Espinal had an associate named Victor

19   Perez who smuggled money to the Dominican Republic at

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

21   Dominican Republic for that purpose, but was afraid that

22   there might be an unrelated outstanding warrant for his

23   arrest issued as a result of his failure to pay child

24   support, which might pose a problem for him during reentry

                                    6
 1   into the United States.     On or about August 29, 2007,

 2   Espinal told Perez that he had a "lady friend" who could

 3   check to see whether Perez had any outstanding warrants.

 4   Trial Tr. at 486:18; Joint App'x at 566.     Perez gave Espinal

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

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

 7   personal information.     The search did not unearth any

 8   outstanding warrants or criminal history information.

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

10   Espinal on that day.     A few days later, Espinal told Perez

11   that it was safe for him to travel.

12            Moran-Toala was indicted in the United States

13   District Court for the Eastern District of New York on

14   February 19, 2008, in connection with these events.        In a

15   superseding indictment filed on April 2, 2009, she was

16   charged, in Count One, with conspiracy to import more than

17   one kilogram of heroin and more than five kilograms of

18   cocaine, in violation of 21 U.S.C. §§ 960, 963; and, in

19   Count Two, with conspiracy to use a government computer

20   unlawfully, in violation of 18 U.S.C. §§ 1030(a)(2)(B),

21   1030(c)(2)(B)(ii).     Unlawful use of a computer is a

22   misdemeanor offense, but is subject to a felony enhancement

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



                                     7
 1   or tortious act in violation of the Constitution or laws of

 2   the United States."   18 U.S.C. § 1030(c)(2)(B)(ii).

 3            The Southern District of Florida Conspiracy

 4            While the New York conspiracy case was pending,

 5   Moran-Toala was indicted in the Southern District of Florida

 6   for her alleged involvement in a separate heroin importation

 7   and distribution conspiracy with her sister and brother-in-

 8   law, officers of the CBP and Transportation Security

 9   Administration, respectively.       On April 16, 2010, she

10   pleaded guilty to the Florida narcotics conspiracy charges.

11   In her signed, written plea allocution, Moran-Toala admitted

12   that she used the TECS system to run travel checks for drug

13   couriers flying out of Fort Lauderdale to help ensure safe

14   delivery of the drugs.   She also admitted that when a

15   shipment of narcotics was seized in April 2007, she used

16   TECS to access the seizure report to prove to her supplier

17   that the product was seized and not stolen.       Moran-Toala was

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

19   Florida conspiracy.

20            Trial in the Eastern District of New York

21            Back in the Eastern District of New York, on June

22   21, 2011, Moran-Toala proceeded to trial before a jury on

23   both counts of the superseding indictment.       She admitted to

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

                                     8
 1   no knowledge of Espinal and Polanco's criminal purpose, let

 2   alone any intent to further it.

 3                 Rule 404(b) Evidence

 4                 During trial, the government moved under Rule

 5   404(b) of the Federal Rules of Evidence to admit Moran-

 6   Toala's Florida plea allocution as evidence of her knowledge

 7   of the New York narcotics conspiracy.           Although the defense

 8   conceded that the plea allocution fell within the ambit of

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

10   on Rule 4033 prejudice grounds.          The district court

11   initially hesitated, noting that if the plea allocution came

12   in, "[i]t wouldn't take more than ten seconds [for the jury]

13   to find her guilty."       Trial Tr. at 293:9-10; Joint App'x at

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

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

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

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




            3
             Federal Rule of Evidence 403 provides: "The court
     may exclude relevant evidence if its probative value is
     substantially outweighed by a danger of one or more of the
     following: unfair prejudice, confusing the issues,
     misleading the jury, undue delay, wasting time, or
     needlessly presenting cumulative evidence." (emphasis
     added).



                                          9
 1   and after heavy editing by the court, the government was

 2   allowed to present the following stipulation to the jury:

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

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

29   prosecutor had finished reading the stipulation into the

30   record, the district court immediately gave the jury a

31   strongly worded limiting instruction, emphasizing that they

32   could consider the stipulation only for the purpose of

33   determining whether Moran-Toala knew that she was misusing

34   the computer to further a crime -- the narcotics conspiracy




                                  10
 1   -- and not as evidence that she has a "propensity to commit

 2   crimes."   Trial Tr. at 535:16; Joint App'x at 615.

 3              The Jury Charge and Verdict Sheet

 4              In its charge as to the law with respect to the

 5   felony enhancement for the unlawful computer use conspiracy,

 6   the district court instructed the jury:

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

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

34   objected to this instruction.

35              The district court provided the jury with a

36   verdict sheet containing various questions.    Question 1


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

 2   narcotics conspiracy count.      Question 2 asked the jury to

 3   find the amounts of heroin and cocaine involved in the

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

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

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

 7   [unlawful computer use] conspiracy in furtherance of the

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

 9   a controlled substance?"    If the jury answered Question 4

10   affirmatively, Moran-Toala would be subject to a felony

11   enhancement on Count Two, for conspiring to unlawfully use a

12   computer.

13               Jury Deliberations

14               At approximately 4:15 p.m. on June 28, 2011, the

15   first full day of deliberations, the jury sent back a note

16   asking "Count 2: must the verdict in #4 be in agreement with

17   Count #1?"    Jury Note, June 28, 2011; Joint App'x at 799.

18   In other words, the jury was asking whether the findings on

19   which it based its response to Question 4 on the verdict

20   sheet (i.e., did Moran-Toala participate in a conspiracy to

21   unlawfully use a computer in furtherance of the crime

22   charged in Count One, conspiracy to import a controlled

23   substance) had to be consistent with its verdict on Count

24   One itself.    The district court shared the contents of the

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

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

 3   government's view, Moran-Toala could have intended to exceed

 4   her authorized computer access in furtherance of the

 5   narcotics conspiracy without agreeing to join it or without

 6   having enough knowledge of the narcotics conspiracy to be

 7   deemed a member.   Defense counsel urged the district court

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

 9   possibility of inconsistent verdicts.

10            Although the district court's "gut feeling" was to

11   agree with the defense that the verdicts must be consistent,

12   Trial Tr. at 697:20; Joint App'x at 777, the court

13   ultimately told the jury that its verdict on the narcotics

14   conspiracy and the felony enhancement did not have to be "in

15   agreement," Trial Tr. at 700:3-4; Joint App'x at 780.     The

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

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

18   17; Joint App'x at 780.

19            Approximately twenty minutes after the district

20   court responded to the jury's note, at 5:02 p.m., the jury

21   returned its verdict.     Consistent with the district court's

22   supplemental instruction, the jury acquitted Moran-Toala of

23   the narcotics conspiracy, but convicted her of conspiring to



                                     13
 1   unlawfully access a computer in furtherance of the same

 2   narcotics conspiracy.

 3            Rule 33 Motion

 4            Following trial, Moran-Toala moved to set aside

 5   the jury's findings with respect to the felony enhancement

 6   pursuant to Rule 33 of the Federal Rules of Criminal

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

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

 9   court began by noting:

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

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

 4   United States v. Moran-Toala, No. 08 Cr. 103, 2012 WL

 5   748612, at *3, 2012 U.S. Dist. LEXIS 30893, at *7-*8

 6   (E.D.N.Y. Mar. 8, 2012) (footnote omitted).   Nevertheless,

 7   the district court rejected the Rule 33 motion because "even

 8   assuming that the Court erroneously sanctioned an

 9   inconsistent verdict, that error would not alter the general

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

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

12            On May 4, 2012, the district court sentenced

13   Moran-Toala, principally, to a term of 12 months'

14   imprisonment, to run concurrently with the 10-year sentence

15   she is serving for the Florida narcotics conspiracy

16   conviction.   Moran-Toala now challenges the supplemental

17   instruction regarding the jury's power to render

18   inconsistent verdicts, as well as the admission of the

19   Florida plea allocution, seeking a new trial on the unlawful

20   computer access conspiracy charge.

21                             DISCUSSION

22            We note at the outset that because the jury,

23   rightly or wrongly, consistently or inconsistently,

24   acquitted the defendant on Count One, the narcotics

25   conspiracy count, the Double Jeopardy Clause bars any

                                   15
 1   retrial of the defendant for that offense.    See Evans v.

 2   Michigan, -- U.S. --, 133 S. Ct. 1069, 1074 (2013) ("It has

 3   been half a century since we first recognized that the

 4   Double Jeopardy Clause bars retrial following a court-

 5   decreed acquittal . . . .").    This appeal is therefore

 6   limited to the defendant's conviction on Count Two: the

 7   misdemeanor conspiracy to exceed authorized computer access

 8   count, and its accompanying felony enhancement, which

 9   applies only if the unlawful computer-use conspiracy was

10   committed in furtherance of the narcotics conspiracy charged

11   in Count One.

12            I.     The Supplemental Jury Instruction

13            As we previously noted, whether the jury rendered

14   inconsistent verdicts is not, in and of itself, the basis

15   for this appeal.    On the face of it, it does seem hopeless

16   to try to reconcile the jury's acquittal as to the

17   defendant's participation in the Espinal-Polanco narcotics

18   conspiracy charged in Count One with the jury's conviction

19   as to Count Two, the defendant's participation in a

20   conspiracy to access TECS with the intent to further the

21   Espinal-Polanco narcotics conspiracy.4    But Moran-Toala does


         4
           By ultimately convicting Moran-Toala of the unlawful
     computer access conspiracy, the jury determined that: she
     agreed with Espinal to gain access to TECS, she committed an
     overt act in furtherance of the conspiracy, and she did so

                                    16
 1   not directly challenge, nor could we review, the verdict for

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

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

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

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

 6   ultimate decisions 'for impermissible reasons,' such as

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

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

 9   Powell, 469 U.S. 57, 63, 65 (1984)).     Inconsistent verdicts

10   are unreviewable on appeal, even though "'error,' in the

11   sense that the jury has not followed the court's

12   instructions, most certainly has occurred," because "the

13   possibility that the inconsistent verdicts may favor the

14   criminal defendant as well as the Government militates

15   against review of such convictions at the defendant's

16   behest."   Powell, 469 U.S. at 65.

17              But it does not follow from judicial inability to

18   disturb inconsistent verdicts after the fact that the

19   district court may sanction potentially inconsistent

20   verdicts ex ante.   It is on that basis that Moran-Toala



     with the intent to advance the narcotics conspiracy. It is
     difficult to see how these findings would not compel the
     jury also to find that Moran-Toala agreed with Espinal to
     import narcotics and that she misused used her CBP computer
     to further that narcotics conspiracy.

                                   17
 1   challenges the supplemental jury instruction: the court's

 2   single-word answer "No" to the note from the jury, which,

 3   she argues, wrongly gave the jury explicit permission to

 4   return inconsistent verdicts, at its discretion.

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

 7             "A jury instruction is erroneous if it misleads

 8   the jury as to the correct legal standard or does not

 9   adequately inform the jury on the law."    United States v. Al

10   Kassar, 660 F.3d 108, 126 (2d Cir. 2011) (alterations and

11   internal quotation marks omitted).    Here, the court

12   initially explained to the jury that its verdict on the

13   narcotics conspiracy count should be "linked" to its

14   findings with respect to the felony enhancement because

15   Moran-Toala could be subject to the felony enhancement only

16   if the government proved that she unlawfully used her CBP

17   computer with the intent to further the narcotics

18   conspiracy.   This instruction reflected the considerable

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

20   and the facts applicable to each.    The jury clearly

21   recognized the tension between a potential verdict

22   acquitting Moran-Toala of participating in a narcotics

23   conspiracy while finding that she agreed with another to

24   misuse her CBP computer with the intent to further that


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

 2   other coherent reason for the jury to send a note seeking

 3   judicial guidance, a note that we understand to be

 4   tantamount to a request for permission to unlink its

 5   verdicts by ignoring the intent requirement in the felony

 6   enhancement charge or by disregarding the majority of the

 7   narcotics conspiracy charge.    The district court, in

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

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

10   law and the evidence.

11            Inconsistent verdicts are often characterized as a

12   form of jury nullification.    "Nullification is, by

13   definition, a violation of a juror's oath to apply the law

14   as instructed by the court -- in the words of the standard

15   oath administered to jurors in the federal courts, to render

16   a true verdict according to the law and the evidence."

17   United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997)

18   (internal quotation marks omitted; emphasis in original).

19   The case before us does not arise from jury nullification --

20   the jury followed the court's instruction that an

21   inconsistent verdict was permissible.    The jury's act would

22   have been one of nullification had the district court

23   answered "yes" to the jury's question as to whether

24   inconsistent verdicts were prohibited and the jury

                                    19
 1   nevertheless returned the same verdict.     But irrespective of

 2   the jury's ultimate decision, the supplemental instruction

 3   cleared the way for the jury to return verdicts the jurors

 4   themselves could not reconcile in light of the court's

 5   charge of law and the evidence presented.

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

 7   that, in a society committed to the rule of law, jury

 8   nullification is desirable or that courts may permit it to

 9   occur when it is within their authority to prevent."     Id. at

10   614.   It plainly follows, as we have concluded, that there

11   is no error in a district court's refusal to give a jury a

12   charge that informs them of their right or ability to

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

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

15   court for instructing a jury that it has a "duty" to convict

16   if the government proves a defendant's guilt beyond a

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

18   20 (2d Cir. 2005) ("Nothing in our case law begins to

19   suggest that the court cannot also tell the jury

20   affirmatively that it has a duty to follow the law, even

21   though it may in fact have the power not to.").     Thus "the

22   power of juries to 'nullify' or exercise a power of lenity

23   is just that -- a power; it is by no means a right."

24   Thomas, 116 F.3d at 615.

                                   20
 1              We conclude that, in its very brief and

 2   extemporaneous late-afternoon response to the jury's

 3   question regarding a possible inconsistent verdict on the

 4   narcotics conspiracy count and the felony enhancement, the

 5   district court was effectively inviting them so to rule,

 6   contrary to law.    Such an "explicit instruction . . .

 7   conveys an implied approval that runs the risk of degrading

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

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

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

11   the law.

12   B.   Nature of the Error

13              1.   Structural Error.    "The Supreme Court has

14   distinguished two kinds of errors that can occur at, or in

15   relation to, a criminal proceeding: so-called 'trial

16   errors,' which are of relatively limited scope and which are

17   subject to harmless error review, and 'structural defects,'

18   which require reversal of an appealed conviction because

19   they 'affect[] the framework within which the trial

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

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

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

23   structural only if they so fundamentally undermine the

24   fairness or the validity of the trial that they require

                                     21
 1   voiding its result regardless of identifiable prejudice."

 2   Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996).

 3            Courts have recognized a limited number of

 4   structural errors, all involving the violation of bedrock

 5   constitutional rights, such as total deprivation of the

 6   right to counsel, see Gideon v. Wainwright, 372 U.S. 335

 7   (1963); United States v. Triumph Capital Grp., Inc., 487

 8   F.3d 124, 131 (2d Cir. 2007); exclusion of jurors on the

 9   basis of race, see Vasquez v. Hillery, 474 U.S. 254 (1986);

10   Tankleff v. Senkowski, 135 F.3d 235, 240 (2d Cir. 1998); and

11   improper closure of a courtroom to the public, see Waller v.

12   Georgia, 467 U.S. 39 (1984); United States v. Gupta, 699

13   F.3d 682, 688 (2d Cir. 2012).

14            The category of recognized structural errors with

15   regard to jury instructions is even more limited.   Thus, as

16   a general proposition, "harmless-error analysis applies to

17   instructional errors so long as the error at issue does not

18   categorically 'vitiate all the jury's findings.'"   Hedgpeth

19   v. Pulido, 555 U.S. 57, 61 (2008) (quoting Neder v. United

20   States, 527 U.S. 1, 11 (1999) (alteration omitted) (emphasis

21   in original)).

22            The instructional error here does not cross that

23   threshold, nor does it implicate the overall fundamental

24   fairness of Moran-Toala's otherwise well-tried case.     In the

                                     22
 1   event of inconsistent verdicts, to the extent they occurred

 2   in this case, "[t]he most that can be said . . . is that the

 3   verdict shows that either in the acquittal [on Count One] or

 4   the conviction [on Count Two] the jury did not speak their

 5   real conclusions, but that does not show that they were not

 6   convinced of the defendant's guilt."      Powell, 469 U.S. at

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

 8   permitting inconsistent verdicts calls into doubt only one

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

10   both.   Because the supplemental instruction did not infect

11   all of the jury's findings, we employ harmless error review.

12   Cf. United States v. Bunchan, 626 F.3d 29, 33-34 & n.2 (1st

13   Cir. 2010) (reviewing for plain error defendant's

14   unpreserved challenge to instruction that jurors "don't have

15   to follow my instructions anymore . . . .      [W]e close the

16   door, and we can't tell whether or not you're doing what we

17   ask you to do," and declining to reach the question of

18   structural error).

19             2.    Harmless Error.    Since the error in the charge

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

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

22   instructions de novo, reversing only where appellant can

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

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

                                       23
 1   internal quotation marks omitted).       "An erroneous

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

 3   (internal quotation marks omitted).       Instructional error is

 4   harmless only if it is "clear beyond a reasonable doubt that

 5   a rational jury would have found the defendant guilty absent

 6   the error."     Neder, 527 U.S. at 18.

 7               Harmless error review in this case is complicated

 8   by the factual, if not legal, inconsistency in the jury's

 9   verdicts.     The very reason such verdicts are unreviewable in

10   and of themselves is because we could do no more than "try

11   to guess which of the inconsistent verdicts is the one the

12   jury really meant."     Acosta, 17 F.3d at 545 (internal

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

14   jury actually had in mind in order to seek to reconcile the

15   two verdicts: perhaps the jury found that Moran-Toala had

16   insufficient knowledge of the narcotics conspiracy to

17   support a conviction on Count One, in which case a properly

18   instructed jury likely would have also rejected the felony

19   enhancement.     Or the jury might have found that Moran-

20   Toala's intent to further the narcotics conspiracy by

21   misusing her CBP computer also proved her membership in the

22   narcotics conspiracy, but it did not wish to convict on such

23   a serious charge without evidence that she personally

24   imported or sold drugs; in that case, a properly instructed

                                     24
 1   jury likely would have applied the felony enhancement.      The

 2   problem with either speculation, though, beyond the fact

 3   that they are speculations, is that they do not account for

 4   the jury's query: "Count 2: must the verdict in #4 be in

 5   agreement with Count #1?"   This note strongly suggests that

 6   the jury itself could not reconcile the verdicts on the two

 7   counts and was seeking (and obtained) permission to render

 8   its contemplated verdicts despite the inconsistency.

 9            There is thus no serious doubt that the erroneous

10   instruction contributed to any inconsistency in the verdicts

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

12   unaware of the fact that the district court's instruction

13   ultimately resulted in a highly favorable verdict for Moran-

14   Toala, who was convicted of the less serious charge and

15   acquitted of the more serious one.   But, in light of the

16   dearth of evidence of Moran-Toala's knowledge of the

17   Espinal-Polanco airport conspiracy, it is nevertheless

18   possible that a jury would have acquitted her of the

19   narcotics conspiracy and declined to apply the felony

20   enhancement had the supplemental instruction been correct


         5
            Of course, the jury instruction also permitted the
     jury to return a verdict convicting Moran-Toala on the
     narcotics conspiracy charge, but declining to elevate the
     unlawful computer access conspiracy conviction from a
     misdemeanor to a felony. That the jury chose otherwise is
     to Moran-Taola's substantial benefit.

                                   25
 1   and informed the jury that inconsistent verdicts are

 2   impermissible.    We therefore cannot say with any confidence

 3   that it is clear beyond a reasonable doubt that a properly

 4   instructed jury would have convicted Moran-Toala of felony-

 5   level unlawful computer access conspiracy.     Accordingly, the

 6   conviction on Count Two must be vacated and the case

 7   remanded to the district court for retrial, should the

 8   government be inclined to pursue the charge.

 9             II.    Rule 404(b) Evidence

10             Although unnecessary to the disposition of this

11   appeal, we nevertheless address the question of the

12   propriety of the district court's admission of Moran-Toala's

13   Florida plea allocution under Rule 404(b).     We do so in

14   light of the fact that the issue has been fully briefed and

15   argued, and for the benefit of the district court should the

16   unlawful computer access conspiracy charge be retried on

17   remand.

18             Rule 404(b)(1) of the Federal Rules of Evidence

19   provides that "[e]vidence of a crime, wrong, or other act is

20   not admissible to prove a person's character in order to

21   show that on a particular occasion the person acted in

22   accordance with the character."     Prior crime evidence may,

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

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

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

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

 3   approach, which admits all 'other act' evidence that does

 4   not serve the sole purpose of showing the defendant's bad

 5   character and that is neither overly prejudicial under Rule

 6   403 nor irrelevant under Rule 402."        United States v.

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

 8            We review the district court's evidentiary ruling

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

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

11   review include whether: "(1) the prior crimes evidence was

12   'offered for a proper purpose'; (2) the evidence was

13   relevant to a disputed issue; (3) the probative value of the

14   evidence was substantially outweighed by its potential for

15   unfair prejudice pursuant to Rule 403; and (4) the court

16   administered an appropriate limiting instruction."        Id. at

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

18   92 (1988)).

19            It is undisputed that the Florida plea allocution

20   was offered to show Moran-Toala's knowledge that her TECS

21   searches furthered the JFK Airport narcotics conspiracy --

22   both a proper purpose under the Rule and a highly disputed

23   issue at trial.    Instead, Moran-Toala objects that no jury

24   could neutrally determine that she conducted inappropriate

                                     27
 1   TECS searches, but not in furtherance of a narcotics

 2   conspiracy, once it found out that she had done just that in

 3   another narcotics conspiracy in Florida.

 4            The Florida plea allocution was both highly

 5   probative of Moran-Toala's knowledge of the New York

 6   conspiracy and highly prejudicial, as the Florida conviction

 7   is nearly identical to the New York charges.        The court

 8   recognized both the probative value of the proffered

 9   evidence and the real problem of prejudice.        The district

10   court initially reserved judgment on the government's Rule

11   404(b) motion, waiting first to review the other evidence

12   that was introduced at trial.        It was only after weighing

13   the probative value of the plea allocution, by noting that

14   the issue of Moran-Toala's knowledge was "very much at

15   play," and limiting its prejudicial effect, by pruning the

16   government's proffered evidence to a focused and brief

17   stipulation, that the court allowed the government to inform

18   the jury about the Florida conviction.        This reflects the

19   proper balancing process required under Rule 403, with the

20   district court engaging in a serious effort to minimize the

21   prejudicial effect of the Florida conviction on the jury.

22   Cf. id. at 477 (district court abused its discretion in

23   admitting evidence of prior conviction under Rule 404(b)

24   without conducting any Rule 403 balancing at all).        "Only

                                     28
 1   rarely -- and in extraordinarily compelling circumstances --

 2   will we, from the vista of a cold appellate record, reverse

 3   a district court's on-the-spot judgment concerning the

 4   relative weighing of probative value and unfair effect."

 5   United States v. Awadallah, 436 F.3d 125, 134 (2d Cir. 2006)

 6   (internal quotation marks omitted).   This not such an

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

 8   the district court's evidentiary ruling.

 9                            CONCLUSION

10            The judgment of conviction is vacated, and the

11   case is remanded to the district court for further

12   proceedings.




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