19-61
United States v. Tapia

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
24th day of August, two thousand twenty.

Present:         DENNIS JACOBS,
                 ROSEMARY S. POOLER,
                            Circuit Judges.
                 BRENDA K. SANNES, 1
                            District Judge.

_____________________________________________________

UNITED STATES OF AMERICA,

                                Appellee,

                         v.                                                19-61

YESENIA NUNEZ TAPIA,

                        Defendant-Appellant.
_____________________________________________________

For Appellant:                  Jeremy F. Orden, New York, N.Y.

For Appellee:                   Kevin Trowel, Assistant United States Attorney, for Seth D.
                                DuCharme, Acting United States Attorney, Eastern District Of
                                New York, Brooklyn, N.Y.

1
  Judge Brenda K. Sannes, United States District Court for the Northern District of New York,
sitting by designation.
Appeal from the United States District Court for the Eastern District of New York (DeArcy Hall,
J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that Defendant-Appellant’s motion to recall this Court’s mandate be and it
hereby is GRANTED, the judgment of the District Court be and it hereby is VACATED, and
Defendant-Appellant’s motion for en banc rehearing be and it hereby is DENIED as moot.

        Defendant-Appellant Yesenia Nunez Tapia moves to recall this Court’s May 18, 2020
mandate, which affirmed the judgment of conviction entered on January 3, 2019, in the United
States District Court for the Eastern District of New York (DeArcy Hall, J.), following Tapia’s
conviction by jury trial for cocaine importation and possession offenses. Tapia also moves for en
banc rehearing of her appeal in light of United States v. Solano, 966 F.3d 184 (2d Cir. 2020),
which held that the same jury instruction used in Tapia’s trial violated the defendant’s
constitutional right to the presumption of innocence. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        “This court has an inherent power to recall its mandate, subject to review for abuse of
discretion.” Bottone v. United States, 350 F.3d 59, 62 (2d Cir. 2003). Though “[o]ur power to
recall a mandate is unquestioned,” we have explained that “this power is to be exercised
sparingly” in order to protect the finality of judicial proceedings and is “reserved for exceptional
circumstances.” Sargent v. Columbia Forest Prod., Inc., 75 F.3d 86, 89 (2d Cir. 1996) (internal
quotation marks and citations omitted). We consider four factors in evaluating whether to recall a
mandate, including: “(1) whether the governing law is unquestionably inconsistent with the
earlier decision; (2) whether the movant brought to the Court’s attention that a dispositive
decision was pending in another court; (3) whether there was a substantial lapse in time between
the issuing of the mandate and the motion to recall the mandate; and (4) whether the equities
strongly favor relief.” Stevens v. Miller, 676 F.3d 62, 69 (2d Cir. 2012) (internal quotation marks
and citation omitted).

         We conclude that these factors weigh in favor of recalling our mandate here. Tapia did
not bring Solano to this Court’s attention before we decided her appeal. Nevertheless, Solano—
now the governing law in this Circuit—unquestionably contradicts our earlier decision in this
case upholding the district court’s jury instruction as to the credibility of witnesses with an
interest in the outcome of the case. Solano held that the same interested witness charge at issue in
this case unconstitutionally undermined the defendant’s right to the presumption of innocence.
See Solano, 966 F.3d at 197. Further, Tapia moved to recall our mandate less than three months
after it issued, and less than two weeks after Solano was decided. Finally, equities strongly favor
the relief that Tapia seeks, because the defendants in both cases were similarly situated. Solano
considered the same jury instruction from the same judge who presided over Tapia’s trial, and as
in Tapia’s case, the Solano defendant’s trial testimony was relevant to the disputed issue of
whether the defendant knew that an item he transported contained cocaine. We therefore grant
Tapia’s motion to recall this Court’s mandate.
        Tapia also moves for en banc rehearing of her appeal in light of Solano. En banc
rehearing is not necessary to resolve Tapia’s appeal, however, because Solano is sufficient to
resolve the issue on which Tapia seeks rehearing in her favor. As the defendant in Solano did,
Tapia raises a challenge to the jury instruction for the first time on appeal as violating her
presumption of innocence. We therefore review the jury instruction for plain error. See Fed. R.
Crim. P. 52(b). Under the plain error standard, the defendant has the burden to show that there is
“(1) error, (2) that is plain, and (3) that affects substantial rights.” Solano, 966 F.3d at 193
(internal quotation marks, brackets, and citation omitted). “An error affects substantial rights
when it is prejudicial—that is, when there is a reasonable probability that the error affected the
outcome of the trial.” Id. (internal quotation marks and citation omitted). If the defendant meets
this burden, then we may “notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks,
brackets, and citation omitted).

        The interested witness charge used in Tapia’s trial “impute[d] a motive to testify falsely
to ‘any’ interested witness and thereby encompasse[d] a testifying defendant,” id. at 197, was
identical to the charge used in Solano, and therefore was plainly erroneous. We further conclude
that the erroneous jury instruction affected Tapia’s substantial rights, and that this error seriously
affected the fairness of the judicial proceedings. Whether Tapia knew that the bottle she
transported to the United States contained cocaine was the key issue at trial, and Tapia was the
sole defense witness. Tapia’s credibility was squarely at issue, and the government repeatedly
challenged Tapia’s credibility during its summation. We conclude based on Solano and the
circumstances of Tapia’s trial that the the district court’s interested witness charge was plainly
erroneous, and merits vacatur of Tapia’s conviction. For the reasons set out in our previous
summary order, however, we leave undisturbed the resolution of Tapia’s other arguments on
appeal. See United States v. Tapia, 799 F. App’x 80, 82 (2d Cir. 2020).

       Accordingly, we hereby GRANT Tapia’s motion to recall this Court’s mandate,
VACATE the judgment of the District Court, DENY as moot Tapia’s motion for an en banc
rehearing, and remand for further proceedings consistent with this opinion.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk
