    19-624-cr
    United States v. Mitchell



                            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 ASUMMARY ORDER@). A PARTY
CITING TO 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 29th day of April , two thousand twenty.

    PRESENT:
                       RALPH K. WINTER,
                       RICHARD C. WESLEY,
                       RICHARD J. SULLIVAN,
                      Circuit Judges.
    _____________________________________

    United States,

                                Appellee,

                       v.                                           19-624

    Naomi Mitchell,

                                Defendant-Appellant.

    _____________________________________
FOR APPELLE:                                    NICHOLAS J. MOSCOW, (Amy Busa, on
                                                the brief), Assistant United States Attorneys,
                                                for Richard P. Donoghue, United States
                                                Attorney for the Eastern District of New
                                                York, New York, NY.

FOR DEFENDANT-APPELLANT:                        ABRAHAM RUBERT-SCHEWEL, (Susan
                                                G. Kellman, on the brief), Law Offices of
                                                Susan G. Kellman, Brooklyn, NY.



       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Amon, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Naomi Mitchell, a former mail carrier, appeals from her judgment of conviction

following a jury trial for a single count of delay or destruction of the mail as a United

States Postal Employee, in violation of 17 U.S.C. § 1703(a). On appeal, Mitchell contends

that the district court’s supplemental jury instructions regarding the definition of

“mistake” were plainly erroneous because the instructions were (1) based on the facts of

the case and (2) presumed Mitchell’s guilt. We assume the parties’ familiarity with the

underlying facts and the record of prior proceedings, to which we refer only as necessary

to explain our decision to affirm.

       This appeal concerns supplemental instructions regarding the definition of

“mistake.” In instructing the jury on the mens rea necessary to violate § 1703(a), the

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district court told the jury that it was required to find that Mitchell “intentionally

secreted, destroyed, or delayed” mail “knowing it belong to someone else,” but could not

convict Mitchell if it found that she did so “by mistake or without realizing what she was

doing.”   Gov. App’x 134.      During deliberations, the jury asked the district court to

“clarify the difference between mistake and intention as it relates to the statute in

question.”   Gov. App’x 138.      The district court, after consultation with the parties,

instructed the jury that:

       Mistake is defined in a law dictionary in part as an error or a
       misunderstanding. So in the context of this case, for example, a mistake
       would be if the defendant believed she had delivered all the mail but had
       accidentally or unknowingly left some mail behind. A mistake does not
       mean well, I know I did something wrong and I’m sorry. That’s not the
       mistake in the context of that in the jury instruction.

Gov. App’x 142. It further provided the jury with the definition of knowingly.

       As an initial matter, we find that Mitchell waived her right to challenge the jury

instructions on appeal. As we explained in United States v. Polouizzi, waiver “is the

‘intentional relinquishment or abandonment of a known right,’ . . . which permanently

extinguishes the right to raise the claim.” 564 F.3d 142, 153 (2d Cir. 2009) (quoting United

States v. Olano, 507 U.S. 725, 733 (1993)). By contrast, forfeiture “results from a failure to

assert the claim in a timely fashion, and . . . does not prevent an appellate court from

reviewing the claim for plain error.” Id. During deliberations, the district court shared

its proposed supplemental instructions with the parties, and defense counsel responded

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that it “adequately defined [mistake] and gave [the jury] the appropriate example;”

counsel requested only that the court also provide the definition of knowingly, which it

agreed to do. Gov. App’x 138–39. When the district court again repeated the proposed

instructions, defense counsel confirmed they were “fine;” suggested a minor change,

which the district court accepted; and told the district court that it was “right in terms of

what our defense is.” Gov. App’x 140. “In these circumstances, by agreeing that the

instruction was satisfactory, [Mitchell] waived the right to challenge the instruction on

appeal.” Polouizzi, 564 F.3d 142, 153.

       Even on the merits, however, Mitchell’s argument would fail.               We view

supplemental jury instructions in the context of the instructions as a whole. United States

v. Daugerdas, 837 F.3d 212, 228 (2d Cir. 2016). Jury instructions are erroneous if they

“mislead the jury as to the correct legal standard or do not adequately inform the jury of

the law.” Id. (quoting Hudson v. New York City, 271 F.3d 62, 67 (2d Cir. 2001)). Had

Mitchell not waived her right to appeal, we would review for plain error. See United

States v. Vilar, 729 F.3d 62, 70 (2d Cir. 2016); Fed. R. Crim. P. 52(b). Under this standard,

Mitchell would be required to show “(1) there is an error; (2) the error is clear and

obvious, rather than subject to reasonable dispute; (3) the error affected the defendant’s

substantial rights, which in the ordinary case means it affected the outcome of the district

court proceedings; and (4) the error seriously affects the fairness, integrity or public



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reputation of judicial proceedings.” United States v. Veliz, 800 F.3d 63, 72 (2d Cir. 2015)

(quoting United States v. Marcus, 560 U.S. 258, 262 (2010)). Here, the district court’s

instructions were not erroneous under any standard.

       Mitchell argues that the supplemental jury instructions included a hypothetical

that improperly relied on the facts of the case. While as a general matter “the choice of

an example too close or analogous to the facts of the case on trial is likely to be more

prejudicial than ‘helpful’ and is quite unnecessary when other clearly non-prejudicial

examples are available,” United States v. Gleason, 616 F.2d 2, 14 (2d Cir. 1979), we have

never imposed a per se bar on referencing the facts of the case in jury instructions.

Instead, we have found instructions problematic where, for example, they use the facts

of the case to suggest that certain circumstantial evidence supported the charge at issue.

See United States v. Gaggi, 811 F.2d 47, 62–63 (2d Cir. 1987); Gleason, 616 F.2d at 13–14;

United States v. Dizdar, 581 F.2d 1031, 1037 (2d Cir. 1978).

       In any event, the examples here simply clarified what could and could not legally

constitute a “mistake.” The examples in the instruction were particularly helpful in light

of testimony from a law enforcement witness that Mitchell admitted holding the mail was

a “mistake” – which defense counsel contended meant she was “not doing it

deliberately,” Gov. App’x 79, but which the government suggested reflected Mitchell’s

knowledge “she was not supposed to do it,” Gov. App’x 81. Since it is undisputed that



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the latter interpretation would not constitute a legal defense in this context, the use of

relevant factual examples in the jury instructions in this case was by no means “more

prejudicial than helpful.” Gaggi, 811 F.2d at 62. Accordingly, the instructions were not

erroneous.

       Mitchell nevertheless relies on United States v. Dove, 916 F.2d 41 (2d Cir. 1990), to

argue that the jury instructions improperly presumed Mitchell’s guilt.             But the

instructions here are quite unlike those in Dove, where we found that the district court’s

use of a hypothetical regarding “whether Jack shot Mary” to describe the difference

between circumstantial and direct evidence was improper because it presumed Jack’s

guilt, which “may have led the jury to discount the circumstantial evidence” that he was

innocent. Id. at 45–46. The jury instructions here surely did not “presume” Mitchell’s

guilt, and in fact encouraged the jury to find her not guilty should it find that Mitchell

accidentally or unknowingly left mail behind.           Put simply, the district court’s

exculpatory and non-exculpatory examples “adequately communicated the essential

ideas to the jury” and in no way prejudiced Mitchell. United States v. Sabhnani, 599 F.3d

215, 237 (2d Cir. 2010) (internal quotations and citations omitted). Accordingly, even if

Mitchell had not waived her challenge to the jury instructions, she has identified no error,

let alone plain error, that would merit reversal.




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      We have reviewed the remainder of Mitchell’s arguments and find them to be

without merit. For the foregoing reasons, the order of the district court is AFFIRMED.



                                        FOR THE COURT:
                                        Catherine O=Hagan Wolfe, Clerk of Court




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