     16-2585 (L)
     United States v. Mehta


 1                                           In the
 2                            United States Court of Appeals
 3                                 For the Second Circuit
 4
 5
 6                                      August Term 2017
 7
 8
 9                                       No. 16-2585(L)
10                                      No. 16-2598(CON)
11                                      No. 16-2606(CON)
12
13                                   United States of America,
14                                           Appellee,
15
16                                              v.
17
18                                       Gaurav Mehta,
19                                     Defendant-Appellant,
20
21                                        Mary Opoka,
22                                     Defendant-Appellant,
23
24                                         Isha Mehta,
25                                     Defendant-Appellant.
26
27
28                          Appeal from the United States District Court
29                             for the Northern District of New York
30                               Thomas J. McAvoy, District Judge.
31                        (Argued: May 21, 2018; Decided: March 21, 2019)
32
33
 1   Before:     Parker, Livingston, and Chin, Circuit Judges.
 2                                      ________
 3
 4         Appeal from judgments of conviction in the United States District Court
 5   for the Northern District of New York (McAvoy, J.). The defendants were
 6   convicted of marriage fraud and immigration fraud in violation of 8 U.S.C. §
 7   1325(c) and 18 U.S.C. §§ 2, 1546(a). During the course of the trial, the judge met
 8   with certain jurors ex parte to discuss the jurors’ concerns about two defendants’
 9   out-of-court behavior. He also instructed the jurors that they could consider the
10   defendants’ self-interest in the outcome of the case when analyzing their trial
11   testimony. These errors compel us to VACATE the judgments of the District
12   Court and REMAND.
13                                         ________
14
15                     DAVID B. GOODHAND, United States Department of Justice,
16                     Criminal Division, Appellate Section, Washington, DC, and
17                     STEVEN D. CLYMER, Assistant United States Attorney, for Grant
18                     C. Jaquith, United States Attorney for the Northern District of
19                     New York, Albany, NY, for the United States of America.
20
21                     HARRY SANDICK, Patterson Belknap Webb & Tyler LLP, New
22                     York, NY, for Gaurav Mehta.
23
24                     ERIC K. SCHILLINGER, Law Office of Eric K. Schillinger, East
25                     Greenbush, NY, for Mary Opoka.
26
27                     ROBERT A. CULP, Law Office of Robert A. Culp, Garrison, NY,
28                     for Isha Mehta.
29
30                                       ________
31
32
33
34



                                             2
 1   BARRINGTON D. PARKER, Circuit Judge:

 2         Defendant Mary Opoka was convicted of marriage fraud, and defendants

 3   Gaurav Mehta and Isha Mehta were each convicted of both marriage fraud and

 4   immigration fraud. See 8 U.S.C. § 1325(c); 18 U.S.C. §§ 2, 1546(a). During the

 5   course of the trial in the United States District Court for the Northern District of

 6   New York (McAvoy, J.), the judge met ex parte with five jurors and discussed the

 7   jurors’ concerns about two defendants’ out-of-court behavior. In addition, the

 8   judge later instructed the jurors that, when analyzing the defendants’ testimony,

 9   they could consider how the defendants’ self-interest in the outcome of the case

10   could create a motive to testify falsely. The circumstances of the meeting with

11   the jurors and the jury charge relating to a testifying defendant’s motivation to lie

12   are directly contrary to the law of this Circuit. Because these errors undermine

13   the presumption of innocence and our confidence in the fairness of the

14   proceedings, we vacate the judgments and remand.




                                              3
 1                                      BACKGROUND

 2         Gaurav Mehta (“Gaurav”), Isha Mehta (“Isha”), and their son were issued

 3   tourist visas in 2009 to enter the United States from India for six months. While

 4   in the United States, Gaurav married Mary Opoka (“Opoka”) and Isha married

 5   Brandon Johnson (“Johnson”), both of whom were U.S. citizens. Gaurav and

 6   Isha then applied to adjust their statuses to lawful permanent residents.

 7         Following a minor car accident, Isha was questioned by police officers, and

 8   her responses raised suspicions about her marriage to Johnson. This incident

 9   triggered an investigation by immigration agents into Isha’s marriage to Johnson

10   and Gaurav’s marriage to Opoka.         The investigation yielded evidence that

11   suggested that Gaurav and Isha’s marriages were fraudulent. Gaurav, Isha, and

12   Opoka were eventually arrested and indicted. Gaurav and Isha were charged

13   with marriage fraud and immigration fraud, and Opoka was charged with

14   marriage fraud. See 8 U.S.C. § 1325(c); 18 U.S.C. §§ 2, 1546(a).

15         Trial commenced on October 27, 2015. On the third day, after the jury had

16   been excused and counsel was waiting to meet the judge in chambers, the court

17   clerk informed the judge that several jurors wished to speak with him. Without




                                               4
 1   notifying counsel of the request, the judge entered the jury room to speak with

 2   the jurors. On the record, he stated:

 3          We are here in the jury room and there are several jurors here—five
 4          to be exact—and they had asked some questions of my clerk, and I
 5          thought it would be best if I listened to their questions and it doesn’t
 6          have to do with the merits of the case, it’s something else, as I
 7          understand, and I will listen to what you have to say and see what I
 8          can do for you.
 9
10   Joint Appendix (“J.A.”) at 769. One juror, speaking for the other jurors, told the

11   judge that she was concerned by two of the defendants’ behavior outside the

12   courthouse:

13          I’ve been coming into the building and going out, [Gaurav and
14          Opoka] have been kind of lingering and staring, like, walking
15          noticeably slow and I feel like I see them, see me, if I was coming in,
16          even if I've been behind them, like, from the second floor parking
17          ramp to the entrance. It’s pretty obvious route and they have—feel
18          like they were lollygagging . . . .
19
20   Id.   As the jurors were expressing their concerns, the judge stated: “That’s

21   disturbing. I think what I would do, if you don’t mind, would be assign a court

22   security officer to accompany you to your cars. Would that help?” Id. at 769–70.

23   The jurors responded in the affirmative. Id. at 770. The judge went on to say:

24          I don’t know why they are doing that. I mean, I’ve been doing this
25          for years and years and once in a while you get somebody that acts
26          inappropriate like that but I think we should have a court security

                                               5
 1         officer there and I will talk with staff and have somebody ready for
 2         you tomorrow.
 3
 4   Id.

 5         After the remaining jurors departed, the judge informed counsel that the ex

 6   parte meeting had occurred. Id. at 771–72. The judge did not have the transcript

 7   read to counsel, but provided a summary as follows:

 8         [One of the jurors] said that she was concerned because as she
 9         walked to and from her car, [Gaurav and Opoka] . . . would sort of
10         follow them and stare at them and it made them very, very nervous
11         and that—so they wanted to know what I could do about it. I said,
12         well, I’ll try to assign a court security officer to you to accompany
13         you to your vehicles. . . . Anyway, they didn't all seem to be upset
14         but a couple of them seemed pretty nervous and the other three just
15         kind of were there for, like, fillers. I listened to their concerns
16         anyway.
17
18   Id. at 772. The judge then instructed counsel to tell their clients “to stay the hell

19   away from the [jury].” Id.

20          After the judge’s explanation of the ex parte meeting, the defendants

21   moved for judgments of acquittal. The motions were denied. At that point,

22   Isha’s counsel also asked for a mistrial because he was concerned that the jury’s

23   fear of Gaurav and Opoka might affect the jury’s perception of Isha.1 Id. at 781.

     1
           Counsel for Isha stated:
           Before we go to the charge conference, Judge, based upon what you relayed to us,


                                                  6
 1   The judge denied the motion, explaining that “nothing” he heard in the meeting

 2   suggested “that [the jurors] made up their mind[s] about guilt or innocence.” Id.

 3   at 781.

 4           In the course of that conversation, counsel for Gaurav addressed the judge:

 5   “We don’t know what the testimony—Judge hasn’t told us everything they said,”

 6   id. at 782, and the judge responded: “I told you everything that I thought . . .

 7   ha[d] to do with the issue of what I had to do to make [the jurors] feel

 8   comfortable,” id. at 782–83. Opoka’s counsel also expressed his concerns about

 9   the accuracy of the jury’s account:

10           It does concern me only because [Gaurav], walking out of the
11           courthouse last night with my client and with Ms. Mehta and the
12           three of us [defense counsel] walked out, [counsel for Isha] was
13           walking out 20 yards in front of us but I’m not sure if they are
14           referencing me leaving the courthouse at night when this would
15           have transpired. This was with both my client and [Gaurav] and
16           [counsel for Gaurav] was in close proximity when they were leaving.
17




             I’m going to ask as to a mistrial as to Mrs. Johnson. The jurors are concerned about
             conduct between Mrs. Mehta and Mr. Mehta and I’m concerned it would spill over
             to her, and there’s no reason it should because she didn’t do anything wrong. I
             don’t know if [Gaurav and Opoka] did but [Isha] did not and we have at least three,
             maybe four jurors concerned about that, and I would ask for a mistrial.
     J.A. 781.


                                                      7
 1   Id. at 783. The judge, attempting to assuage counsel’s concerns, explained his

 2   reason for assigning security:

 3         I don’t know. The jurors perceive something that wasn’t really
 4         happening, maybe they are just first-time jurors and they are all a
 5         little nervous about the process and reading something into what
 6         was really innocent behavior. I’m not saying it’s against your
 7         defendants. I’m just saying I want to make the jury feel comfortable.
 8         Many occasions I have had jurors accompanied by [security officers]
 9         going between this courthouse and the parking ramp and also the
10         Binghamton courthouse. It’s not unusual for it to happen.
11
12   Id. The judge did not, however, report that he had used words like “disturbing”

13   and “inappropriate” in his meeting with the five jurors, nor did he state that he

14   had told the jurors that, in his “years and years” of presiding at trials, this

15   situation was unusual. Id. at 769–70. After this discussion, the judge did not go

16   on to inquire as to whether the apprehensions expressed by the jurors with

17   whom he met were shared by other jurors who were not present at the

18   conference. Moreover, no inquiry was made of any of the jurors as to whether

19   they could remain impartial.

20         After the close of evidence, when charging the jury, the judge stated: “You

21   may consider the fact that a defendant’s interest in the outcome of the case

22   creates a motive for false testimony, but it by no means follows that a defendant



                                             8
 1   is not capable of telling the truth.” Id. at 1093. Defense counsel failed to object to

 2   the instruction at the time it was given.        Additionally, on the elements of

 3   § 1325(c), the judge charged the jury that marriage fraud occurred if the

 4   defendant “would not have entered the marriage unless the purpose was to

 5   avoid the immigration laws relating to aliens remaining in the United States.” Id.

 6   at 1100. He further charged that if the marriages in question “were entered for

 7   legitimate reasons, then there is no evasion of the immigration law.” Id. Isha had

 8   objected to this charge, asking the judge to instruct the jury that marriage fraud

 9   occurs only when a person enters into a marriage “without intending to live

10   together as husband and wife, for the purpose of evading the immigration laws of

11   the United States.” Id. at 35, 788 (emphasis added). The judge denied Isha’s

12   request. Following its deliberations, the jury convicted the three defendants on

13   all counts, and the judge sentenced each to three years’ probation.

14         The defendants raise a number of issues on appeal. Although we do not

15   question the judge’s conscientiousness and good faith, we nonetheless conclude

16   that his ex parte meeting with the jurors and his instruction about assessing the

17   credibility of a testifying defendant were sufficiently sharp departures from the




                                               9
 1   law of this Circuit as to undermine our confidence in the fairness of the trial. For

 2   the reasons expressed below, the judgments are vacated and the cases are

 3   remanded for further proceedings.

 4                                 STANDARD OF REVIEW

 5         We will reverse a violation of a defendant’s right to be present at every

 6   trial stage when the error is not harmless. United States v. Collins, 665 F.3d 454,

 7   460 (2d Cir. 2012). An error is not harmless if there is a reasonable possibility

 8   that the error complained of might have contributed to the conviction. United

 9   States v. Brutus, 505 F.3d 80, 88 (2d Cir. 2007). For other errors to which counsel

10   failed to object, we will review for plain error. Fed. R. Crim. P. 52(b). We may

11   correct an error that is clear and obvious, affected the defendants’ substantial

12   rights, and seriously affected the fairness, integrity, or public reputation of the

13   judicial proceedings. United States v. Olano, 507 U.S. 725, 732–36 (1993).

14                                       DISCUSSION

15                                             I

16         A defendant in a criminal case has the right, rooted in the Sixth

17   Amendment Confrontation Clause and Fifth Amendment Due Process Clause, to




                                              10
 1   be present at every trial stage. Collins, 665 F.3d at 459; United States v. Canady, 126

 2   F.3d 352, 360 (2d Cir. 1997) (“The defendant’s right to be present at every stage of

 3   trial is scarcely less important to the accused than the right of trial itself.”). “The

 4   right to be present has been extended to require that messages from a jury should

 5   be disclosed to counsel and that counsel should be afforded an opportunity to be

 6   heard before the trial judge responds.” United States v. Mejia, 356 F.3d 470, 474

 7   (2d Cir. 2004).

 8         In United States v. Collins, we reiterated the practices to be followed when

 9   the district court receives an inquiry from a jury:

10         (1) the jury inquiry should be in writing; (2) the note should be
11         marked as the court’s exhibit and read into the record with counsel
12         and defendant present; (3) counsel should have an opportunity to
13         suggest a response, and the judge should inform counsel of the
14         response to be given; and (4) on the recall of the jury, the trial judge
15         should read the note into the record, allowing an opportunity to the
16         jury to correct the inquiry or to elaborate upon it.

17   665 F.3d at 460 (quoting Mejia, 356 F.3d at 475). Additionally, we have been clear

18   that “the trial court should not respond to a jury note in an ex parte manner”

19   because such communications are “pregnant with possibilities for error” and




                                               11
 1   “unexpected questions or comments can generate unintended and misleading

 2   impressions of the judge’s subjective personal views.” Id.

 3         Here, our instructions in Collins were not followed, and that failure was

 4   clear and obvious error. The jurors were not asked to put their inquiries in

 5   writing. Rather, after receiving notification from the clerk, the judge went into

 6   the jury room and met with the five jurors who had asked to speak with him. As

 7   Collins warned, the judge found himself required to respond to unexpected

 8   questions in a context where it was difficult to anticipate, much less contain, the

 9   direction the conversation would take. See id.

10         Neither the defendants nor counsel were informed before the ex parte

11   meeting that the judge had received an inquiry. Consequently, counsel could

12   neither suggest how to handle the inquiry nor comment on the judge’s proposed

13   response. See United States v. Ronder, 639 F.2d 931, 935 (2d Cir. 1981) (reversing

14   where trial court failed to discuss several jury notes with counsel because

15   disclosure of at least one of the notes “might well have prompted counsel to

16   suggest a response appropriately tailored to the circumstances”).        This lost

17   opportunity was in no sense a formality. The crimes charged in the indictment




                                             12
 1   were non-violent crimes.    Yet the judge’s comments to the jurors strongly

 2   implied that the defendants posed some threat of physical danger to the jurors.

 3   After being informed by the jurors that they believed they were being observed

 4   by two of the defendants, the judge described the defendants’ behavior as

 5   “disturbing,” “inappropriate,” and unusual in his “years and years” of

 6   experience. J.A. 769–70. Had defense counsel been given an opportunity to

 7   respond, they likely would have provided an alternative account of the

 8   circumstances, and one that could well have fully addressed the jurors’ perceived

 9   safety concerns.

10         Moreover, the judge’s account of the meeting to counsel did not fully

11   capture the extent of the discussions at the ex parte meeting. For example, the

12   judge did not mention that he had described the two defendants’ behavior as

13   “disturbing” and “inappropriate” without inquiring into the rationale behind the

14   jurors’ reactions. Id. Instead, the judge assured counsel that he had simply made

15   the jurors feel comfortable and had not acted beyond the bounds of ordinary

16   practice. Id. at 782–83.




                                            13
 1         The judge also failed to take action to mitigate the prejudicial effects of the

 2   ex parte meeting. See, e.g., Sher v. Stoughton, 666 F.2d 791, 793–95 (2d Cir. 1981)

 3   (finding no prejudice where the judge had conducted prompt voir dire and

 4   offered curative instructions after a potentially prejudicial call to jurors). For

 5   example, the content of the meeting was never discussed with the full jury,

 6   leaving the other jurors to speculate as to what had happened in the private

 7   meeting. This omission created the very real risk that some or all of the jurors

 8   reached unfounded conclusions about the defendants, either on their own or

 9   through informal discussions with other jurors, without any guidance from the

10   District Court or from counsel. Further, the jurors were never asked if they could

11   remain impartial despite knowledge that some jurors harbored apprehensions

12   about the defendants. See id. (finding no prejudice where each juror assured

13   court that they could remain impartial).

14         We do not suggest that such an inquiry is necessary whenever a juror

15   raises a security concern.   “The mere occurrence of an ex parte conversation

16   between a trial judge and a juror does not constitute a deprivation of any

17   constitutional right.”   United States v. Gagnon, 470 U.S. 522, 526 (1985) (per




                                                14
 1   curiam). Taken collectively, however, the aforementioned decisions run contrary

 2   to our instructions on the handling of jury communications and implicate the

 3   precise concerns that animated our decision in Collins.

 4                                             II

 5         The prejudice resulting from the ex parte meeting was compounded by the

 6   charge to the jury that it “may consider the fact that a defendant’s interest in the

 7   outcome of the case creates a motive for false testimony.” J.A. 1093. We have

 8   repeatedly held, in no uncertain terms, that this charge is forbidden; district

 9   courts may not tell juries that a testifying defendant’s personal interest in the

10   outcome of a trial supplies a motive to lie.

11         In United States v. Gaines, we held that “district courts should not instruct

12   juries to the effect that a testifying defendant has a deep personal interest in the

13   case.” 457 F.3d 238, 249 (2d Cir. 2006). A year later, we held in United States v.

14   Brutus that such an instruction “undermines the presumption of innocence

15   because it presupposes the defendant’s guilt.” 505 F.3d at 87. The instruction is

16   impermissible, we stated, even if it is “balanced by other, more favorable

17   language,” such as a district court’s instruction that a defendant may have




                                              15
 1   testified truthfully despite having an interest in the outcome of the trial. Id.

 2   Indeed, the Government concedes that the District Court’s instruction violated

 3   this Circuit’s law.2 See Appellee’s Br. at 41. It is therefore undisputed that the

 4   instruction constituted clear and obvious error.3

 5                                                    III

 6          The presumption of innocence “is the undoubted law, axiomatic and

 7   elementary.” Gaines, 457 F.3d at 245 (quoting Coffin v. United States, 156 U.S. 432,

 8   453 (1895)). “To implement the presumption, the Supreme Court has warned,

 9   courts must be alert to factors that may undermine the fairness of the fact-finding

10   process.” Brutus, 505 F.3d at 85 (quoting Estelle v. Williams, 425 U.S. 501, 503



     2
            Nevertheless, the Government argues that the error did not affect the defendants’
     substantial rights or the fairness, integrity, or public reputation of the proceedings. Appellee’s Br.
     at 41.
     3
             In Brutus and Gaines, we recommended language that properly instructs the jury on how
     to evaluate a defendant’s testimony:
                    You should judge the defendant’s testimony in the same way that you judge
            the testimony of any other witness.
            ....
                    The defendant in a criminal case never has any duty to testify or come
            forward with any evidence. This is because, as I have told you, the burden of proof
            beyond a reasonable doubt remains on the government at all times, and the
            defendant is presumed innocent. . . .
     505 F.3d at 88 nn. 6–7 (quoting Gaines, 457 F.3d at 249 nn. 8–9).




                                                      16
 1   (1976)). We conclude that the errors in question jeopardized the fairness of the

 2   proceedings and compel us to vacate the judgments of conviction.

 3         The charging error undermined the presumption of innocence, which is

 4   not only one of the most fundamental principles of our criminal justice system,

 5   but also one of the principles most widely known and understood by the public

 6   at large. See Gaines, 457 F.3d at 245. Further, the effect of the error was amplified

 7   by the manner in which the inquiry from the jurors was handled. Specifically,

 8   the ex parte meeting and its aftermath compromised the integrity of the jury

 9   process, thus violating the defendants’ substantial rights. This case boiled down

10   to the jury’s determinations of the defendants’ credibility. See Gaines, 457 F.3d at

11   250. Based on our review of the evidence presented at trial, there is a reasonable

12   probability that the errors complained of might have contributed to the

13   convictions.   See Brutus, 505 F.3d at 88.     Furthermore, the errors no doubt

14   undermined the fairness, integrity, and public reputation of the judicial

15   proceedings. See Gaines, 457 F.3d at 245–46. We therefore vacate the defendants’

16   convictions and remand for retrial.




                                              17
 1                                            IV

 2         Defendants were charged under § 1325(c), which provides that an

 3   individual who “knowingly enters into a marriage for the purpose of evading

 4   any provision of the immigration laws” commits marriage fraud.               8 U.S.C.

 5   § 1325(c). Isha requested the following jury instruction on the marriage fraud

 6   charge:

 7         In order to find a person guilty of marriage fraud the government
 8         must prove beyond a reasonable doubt that a person knowingly
 9         entered into a marriage without intending to live together as husband
10         and wife, for the purpose of evading the immigration laws of the
11         United States.
12
13   J.A. 35 (emphasis added). The judge did not adopt this language, and instead

14   instructed the jury:

15         If the marriages referenced in counts one and four were entered for
16         legitimate reasons, then there is no evasion of the immigration law. . . .
17         You must determine whether the defendant you are considering
18         would not have entered the marriage unless the purpose was to
19         avoid the immigration laws relating to aliens remaining in the
20         United States.
21
22   Id. at 1100 (emphasis added). Defendants argue that the failure to include their

23   proposed “intent to live together as husband and wife” language was error




                                              18
 1   because it allowed the jury to convict even if the defendants had legitimate

 2   motivations, in addition to obtaining immigration benefits, for entering into their

 3   respective marriages. We disagree.

 4         As an initial matter, defendants are not entitled to have the exact language

 5   they propose read to the jury. United States v. Russo, 74 F.3d 1383, 1393 (2d Cir.

 6   1996). The trial court has substantial discretion to fashion the language of jury

 7   instructions, so long as it is fair to both sides. Id. The judge’s instructions were

 8   fair to both sides, and in fact adequately addressed the very concerns the

 9   defendants raise on appeal. The judge instructed the jury that if there were

10   legitimate reasons for the defendants’ marriages, they could not be convicted of

11   marriage fraud. He also instructed the jury that if the defendants would have

12   entered the marriage for other legitimate reasons, notwithstanding the

13   immigration benefits they would receive, they could not be convicted of

14   marriage fraud.

15         In any case, the judge’s instructions are in accordance with the law of our

16   Circuit. See, e.g., 2 Leonard B. Sand et al., Modern Federal Jury Instructions-Criminal

17   ¶ 33A.07 cmt. (2018) (explaining that the purposeful evasion element of § 1325(c)




                                               19
1   “requires the government to prove that the marriage was a sham, entered into by

2   the defendant only for the purpose of evading the immigration laws”). Thus, the

3   District Court did not err in rejecting the proposed instruction.

4                                     CONCLUSION

5          For the reasons set forth, we VACATE the judgments of the District Court

6   and REMAND for proceedings consistent with this opinion.




                                             20
