           12-626
           United States v. Haynes
 1                              UNITED STATES COURT OF APPEALS
 2
 3                                      For the Second Circuit
 4                              ____________________________________
 5
 6                                        August Term, 2013
 7
 8                  Argued: March 8, 2013             Decided: September 5, 2013
 9
10                                       Docket No. 12-626-cr
11                              ____________________________________
12
13                                     United States of America,
14
15                                            Appellee,
16
17                                              —v.—
18
19                                           Tara Haynes
20
21                                       Defendant-Appellant.
22                               ___________________________________
23
24            Before: SACK and LOHIER, Circuit Judges, and KOELTL, District Judge.*
25
26         After a jury trial in the United States District Court for the Northern

27   District of New York (“NDNY”), the defendant, Tara Haynes, was convicted of



     * The Honorable John G. Koeltl, of the United States District Court for the
     Southern District of New York, sitting by designation.


                                                  1
28   one count of importation of 500 grams or more of a substance containing

29   methamphetamine in violation of 21 U.S.C. §§ 952 and 963 and one count of

30   possession with intent to distribute that substance in violation of 21 U.S.C.

31   § 841(a)(1). The defendant was sentenced principally to 188 months

32   imprisonment on each count to run concurrently. In this appeal from the

33   judgment entered on January 30, 2012, the defendant alleges numerous errors.

34   We find that the cumulative effect of the various errors—including the

35   defendant’s improper shackling, the failure to investigate potential jury

36   misconduct, an improper Allen charge, and serious evidentiary errors—

37   undermined the guarantee of fundamental fairness to which the defendant is

38   entitled. Therefore, we vacate the defendant’s conviction and remand for

39   proceedings consistent with this opinion.

40

41         VACATED AND REMANDED.

42   ______________

43   MARC FERNICH AND JONATHAN SAVELLA, Law Office of Marc Fernich, for
44   Defendant-Appellant Tara Haynes.
45




                                                 2
46   JULIE S. PFLUGER AND PAUL D. SILVER, Assistant United States Attorneys,
47   for Richard S. Hartunian, United States Attorney for the Northern District of
48   New York, for Appellee United States of America.
49   ______________

50   John G. Koeltl, District Judge:

51         After a jury trial in the United States District Court for the Northern

52   District of New York (“NDNY”), the defendant, Tara Haynes, was convicted of

53   one count of importation of 500 grams or more of a substance containing

54   methamphetamine in violation of 21 U.S.C. §§ 952 and 963 and one count of

55   possession with intent to distribute that substance in violation of 21 U.S.C.

56   § 841(a)(1). The defendant was sentenced principally to 188 months

57   imprisonment on each count to run concurrently. In this appeal from the

58   judgment entered on January 30, 2012, the defendant alleges numerous errors.

59   We find that the cumulative effect of the various errors—including the

60   defendant’s improper shackling, the failure to investigate potential jury

61   misconduct, an improper Allen charge, and serious evidentiary errors—

62   undermined the guarantee of fundamental fairness to which the defendant is




                                                 3
63   entitled. Therefore, we VACATE the defendant’s conviction and REMAND for

64   proceedings consistent with this opinion.

65

66                                       BACKGROUND

67         On June 2, 2011, the defendant, Tara Haynes, was arrested at the border of

68   the United States and Canada at the Champlain Port of Entry in New York.

69   Customs and Border Patrol Officers recovered approximately 70,000 pills

70   wrapped in plastic from the gas tank of the rental car the defendant was driving.

71   The pills contained methamphetamine.

72         On August 11, 2011, a grand jury in the NDNY returned a two-count

73   superseding indictment against the defendant. Count I alleged that the

74   defendant had knowingly and intentionally imported and attempted to import

75   into the United States various controlled substances, including 500 grams or

76   more of a mixture or substance containing a detectable amount of

77   methamphetamine, in violation of 21 U.S.C. §§ 952 and 963. Count II alleged that

78   the defendant knowingly and intentionally possessed with the intent to

79   distribute those controlled substances in violation of 21 U.S.C. § 841(a)(1).



                                                  4
80         The defendant’s trial began on August 16, 2011. The defendant was

81   shackled throughout the trial. The trial transcript does not contain any findings

82   as to why it was necessary to shackle the defendant during the trial. However,

83   when the defendant took the stand to testify, the Court instructed the jury to

84   leave the courtroom, and the defendant walked to the stand out of the presence

85   of the jury. The only other mention of the shackles in the record occurred when

86   defense counsel stated in summation as follows:

87         [The defendant is] locked here in shackles right now. She was
88         sitting up in the [witness stand] and I don’t want you to think it was
89         disrespect that she didn’t stand up but it’s the rules of the court
90         because they had taken awa[y] her liberty. It’s not the judge’s fault.
91         This is what these agents did. No criminal record, no prior arrests,
92         34 years old, consistent job for four years, two kids and they have
93         taken away her liberties on this.
94

95   (Trial Tr. 626)

96         The trial lasted only four days from the start of jury selection to the

97   beginning of jury deliberations. The evidence was introduced in less than three

98   days. The Government’s theory at trial was that the defendant was a “drug

99   courier,” which was why she acted nervously and gave inconsistent responses to




                                                  5
100   law enforcement officers at the border. (Trial Tr. 25) The defendant’s theory at

101   trial was that she was simply a “blind mule” who had no knowledge that there

102   were any narcotics in her rental car. (Trial Tr. 34)

103         At trial, law enforcement officers testified about the circumstances of the

104   defendant’s arrest at the border and the inconsistent statements that the

105   defendant made during her arrest. The officers testified that they observed

106   indications that drugs were present in the car, including the presence of masking

107   agents used to hide the odor of drugs, namely a newly opened air freshener

108   hanging from the car’s windshield and an aerosol spray can described as “new

109   car scent” recovered from the defendant’s purse. (Trial Tr. 201, 227) The

110   defendant asked if she could discard the aerosol can, but was told that she could

111   not. There was also an overwhelming smell of gasoline in the car. A law

112   enforcement agent also testified that the defendant had a history of border

113   crossings into the United States and provided details about the circumstances of

114   those prior crossings.

115         The officers recovered approximately 70,000 pills weighing approximately

116   49.4 pounds wrapped in plastic and stuffed tightly in the rental car’s gas tank.



                                                    6
117   An expert witness estimated that the value of the pills, which contained

118   methamphetamine, was between $500,000 and $2,100,000.

119         Customs and Border Protection Officer Troy Rabideau testified in detail

120   about the fuel light in the car, which indicated that the gas tank was empty

121   although his search revealed that there were approximately four or five gallons

122   of gas in the tank. The Government asked Officer Rabideau why the fuel light

123   would be on when there was gas in the car, and defense counsel objected on the

124   ground that the question called for expert testimony. The objection was

125   overruled. Officer Rabideau answered as follows:

126         On the outside of this cylinder, there’s a float and that’s –- the float is
127         what shows that the gas level, so as the float goes down, the gas
128         level in the vehicle obviously goes down. So, when the drugs were
129         placed and the float was pushed to the bottom, drugs holding that to
130         the bottom would always read zero kilometers to empty. That
131         would always be on empty.
132

133   (Trial Tr. 287-88) Officer Rabideau testified that the fuel indicator would remain

134   on empty “[f]or as long as those drugs were in the vehicle.” (Trial Tr. 288)

135   Defense counsel objected on the basis of lack of foundation, and the Court

136   overruled the objection. Officer Rabideau testified that he had not attended



                                                    7
137   “mechanic school,” but that he had “looked in the gas tank prior to this” and that

138   the fuel light had been on throughout his investigation. (Trial Tr. 309)

139         Before lunch on the third day of trial, the Government rested. The defense

140   case consisted of the testimony of a friend of the defendant who explained that

141   the defendant was a single mother of two children and that she had once taken a

142   seemingly benign New Year’s Eve trip with the defendant from Canada to New

143   York in the defendant’s car.

144         The defendant testified in her own defense. She testified that she rented

145   the car on Tuesday, May 31, 2011 in anticipation of traveling to New York City

146   for the weekend. On Wednesday, June 1, 2011, the defendant was driving with

147   her former boyfriend who pointed out the aerosol can in the car’s glove

148   compartment. The defendant testified that at about 9:30p.m. on Thursday, June

149   2, 2011, just prior to leaving for New York, she stopped at a convenience store

150   and purchased some food for her ride. She also bought a hanging air freshener

151   because she thought it was cute. She testified that as she approached the

152   Champlain Port of Entry she removed the aerosol can from the glove

153   compartment to use it to mask her foot odor, but she found that it was empty.



                                                  8
154   The defendant testified that she noticed the fuel light turn on as she approached

155   the border, and she decided that she would refuel after crossing the border. She

156   denied knowing that there were any drugs in the car.

157         The defendant described her interactions with law enforcement officers at

158   the border and the circumstances surrounding her arrest. The defendant

159   admitted that she had lied to the officers about whether she took the rental car in

160   for an oil change prior to reaching the border crossing. The defendant also

161   testified that she was “very upset” and “shocked” when an agent told her that

162   70,000 ecstasy pills had been recovered from the rental car. (Trial Tr. 542-43)

163         On cross-examination, the Government pointed out that although the

164   defendant had testified that the agent had told her there were 70,000 ecstasy pills

165   recovered from the car, the pills had not been counted by the time the agent met

166   with the defendant. The defendant also admitted on cross-examination that she

167   had lied to the officers about why she was going to New York.

168         The defense called an expert witness to support its theory that the

169   defendant was operating as a “blind mule” for drug distributors. The defense’s

170   expert witness, Richard Stratton, had been a marijuana distributor who had



                                                   9
171   trafficked drugs across international borders and had studied and written articles

172   about drug distribution. Over the Government’s objection, the Court permitted

173   the defense expert witness to testify regarding the modus operandi of drug

174   distributors provided that neither party would attempt to “elicit the expert’s

175   opinions on the ultimate issue of defendant’s knowledge.” (Trial Tr. 499) Mr.

176   Stratton testified that when he was a drug distributor he “used blind mules

177   whenever [h]e had the opportunity,” and explained their advantages. (Trial Tr.

178   567)

179          In its rebuttal case, the Government re-called Special Agent Russell Linstad

180   of the Department of Homeland Security who had testified as an expert witness

181   in the Government’s case-in-chief about the value of the drugs seized. The

182   Government re-called Agent Linstad to “point out the flaws in a blind mule

183   scenario” as explained by the defense and its expert witness. (Trial Tr. 589) Agent

184   Linstad testified as follows:

185          With the blind mule . . . the person’s going to be unwitting, not
186          know that there’s anything going on with the load. So in this case,
187          after reviewing the case, in my opinion the defendant realized,
188          especially with inconsistency in the [defendant’s] statements, the
189          strong odor of gasoline, the fuel light and also masking agents to



                                                 10
190         keep it. Again, an organization wants it blind. They can’t have
191         people know that there is a load or that there [are] narcotics in the
192         vehicle.
193
194   (Trial Tr. 589)

195         The defense rested at the end of the third day of trial. The following day,

196   after summations, the Court charged the jury. The jury deliberated for

197   approximately three and a half hours before sending a deadlock note, which the

198   Court explained as follows:

199         I have received a note, timed 3:36, from the foreperson of the jury,
200         and I have now given copies to both counsel. I have asked our clerk
201         to mark the note for identification as Court’s Exhibit No. 1. The note
202         says, “Your Honor, we are hopelessly deadlocked. Help.”
203
204         As both counsel know, the jury’s been out since approximately 12
205         P.M., and at this point in time my plan is to bring them back in and
206         informally ask them to go back in and continue their deliberations
207         with an eye toward whether they can reach a verdict.
208
209         ....
210
211         I’m not at the point right at this moment where I think that I have to
212         give the Allen charge. . . . [M]y plan is to bring [the jury] in,
213         acknowledge that they have been at it for a few hours, but to tell
214         them that for both sides this is a very important matter and to ask
215         them to continue their deliberations.
216




                                                 11
217   (Trial Tr. 681) There were no objections. The Judge then called the jury back into

218   the courtroom, but did more than simply ask the jury to continue to deliberate.

219   The Court instructed the jury as follows:

220         Members of the jury, I’m going to ask you to return to the jury room
221         and deliberate further. I realize that you are having some difficulty
222         reaching a unanimous agreement, but that is not unusual. And
223         often after further discussions jurors are able to work out their
224         differences and agree.
225
226         It is your duty as jurors to consult with one another and to deliberate
227         with a view toward reaching an agreement, if you can do so without
228         violence to individual judgment. Each of you must decide the case
229         for yourself. But do so only after an impartial consideration of the
230         evidence in the case with your fellow jurors. In the course of your
231         deliberations, do not hesitate to re-examine your own views and
232         change your opinion if convinced it is erroneous but do not
233         surrender your honest conviction as to the weight or effect of
234         evidence solely because of the opinion of your fellow jurors or for
235         the mere purpose of returning a verdict.
236
237         Listen carefully to what the other jurors have to say and then decide
238         for yourself if the Government has proved the defendant guilty
239         beyond a reasonable doubt.
240
241         What I have just said is not meant to rush or pressure you into
242         agreeing on a verdict. Take as much time as you need to discuss
243         things. There is no hurry with this instruction, I will now return you
244         to the jury room. Thank you.
245




                                                  12
246   (Trial Tr. 682-83)

247         Although the Court had said that it was not going to give an Allen charge,

248   the supplemental charge that the Court gave had the hallmarks of what is

249   generally known as a modified Allen charge. See Allen v. United States, 164 U.S.

250   492 (1896); see also Spears v. Greiner, 459 F.3d 200, 204 n.3 (2d Cir. 2006). It

251   instructed the jurors to consult with each other, to deliberate with a view toward

252   reaching a verdict, and told them not to “hesitate to re-examine [their] own

253   views and change [their] opinion,” but not to “surrender [their] honest

254   conviction.” (Trial Tr. 682-83) Neither the Government nor the defense objected

255   to the supplemental charge.

256         Later that day, at approximately 5:00p.m., the Judge explained to counsel

257   that the jury would be dismissed and asked to return the following Monday at

258   9:30a.m. The Court said that it would not “give [the jury] a full Allen charge at

259   this time,” but would ask them to come back on Monday to try to come to a

260   unanimous verdict.” (Trial Tr. 684) At that point, defense counsel indicated that

261   he wanted to discuss another matter with the Court concerning a statement




                                                   13
262   made to him by an alternate juror about a conversation between jurors prior to

263   the beginning of their deliberations:

264         Judge, I just note that when I had gone outside last time I saw the
265         alternate, he talked to me and he said that some of the women on the
266         jury had said that [the defendant] might be guilty, she’s here. And
267         he had said that didn’t fly, in sum and substance of that. I mean,
268         obviously they shouldn’t have – he obviously didn’t give any
269         specifics or anything like that but [it] really does concern me that
270         there was some sort of discussion to that extent and, I mean, it
271         would be a dereliction of my duty if I didn’t ask for a mistrial in
272         th[is] case.
273

274   (Trial Tr. 684-85) The Judge responded that the jury had been “continuously

275   advised that if there were any discussions prior to deliberations, that it should be

276   brought to [the Court’s] attention immediately,” and “no juror brought anything

277   like that to [the Court’s] attention.” (Trial Tr. 685) The Court continued, “I’m not

278   saying that the information that you’re getting from the alternate isn’t accurate.

279   I’m just saying that no juror brought anything like that to my attention.” (Trial

280   Tr. 685) The Judge denied the motion for a mistrial and did not inquire further

281   into the comments that defense counsel had brought to the Court’s attention.




                                                  14
282         The Judge then received a note from the jury requesting clarification on the

283   counts, the amount of drugs, reasonable doubt, and the absence of evidence. The

284   Judge explained to the parties that the Judge intended to dismiss the jurors and

285   address the note on Monday morning by re-reading the portions of the

286   indictment, verdict sheet, and charge referenced in the note from the jury.

287         However, before the Court brought the jury out to be dismissed for the

288   day, defense counsel again raised the alleged comments by the alternate juror

289   and requested a “curative instruction” or for a renewal of the instruction that “if

290   there was any discussion about the presumption [of innocence] or anything like

291   that prior to the entry of deliberations, that it be disclosed to the Court.” (Trial Tr.

292   689) The Judge responded that the Court had “reminded the jury that [the

293   defendant] is presumed innocent at all times” and that because there was “no

294   indication from any juror that there was any inappropriate discussion [the Court

295   would] refrain from questioning the jury at [this] time.” (Trial Tr. 689) The Judge

296   also stated that the Judge would not inquire about any premature deliberations.

297         The jury re-entered the courtroom, and the Court dismissed the jurors for

298   the day. In the course of dismissing the jurors, the Judge stated:



                                                    15
299         I believe that on Monday, after you’ve had a restful weekend and
300         are given instructions by me, when you retire into the jury
301         deliberation room and you give each other fair and full
302         consideration, you will be able to arrive at a just verdict.
303
304         Remember that you should not feel –- you should not feel any
305         pressure of time in reaching your verdict. You should listen to each
306         other’s views and work as diligently as you can to arrive at a
307         unanimous verdict. Rest assured that I will respond to your note
308         Monday morning and then let you continue your deliberations.
309
310   (Trial Tr. 692) There was no objection.
311
312         On Monday, with the agreement of the parties, the Judge reviewed the

313   verdict sheet with the jury and reread the charge on reasonable doubt, direct and

314   circumstantial evidence, and certain charges relating to the absence of evidence.

315   At approximately 10:00a.m., the Judge excused the jury to continue their

316   deliberations. At approximately 2:30p.m., after about eight total hours of

317   deliberations, the jury returned a unanimous verdict of guilty on both counts of

318   the indictment.1




      1On the Special Verdict Form, the jury found the defendant guilty of importation
      and possession with intent to distribute 500 grams or more of a mixture or
      substance containing a detectable amount of methamphetamine, but found that
      the Government had not proved the defendant’s guilt beyond a reasonable doubt


                                                 16
319         On January 30, 2012, the defendant was sentenced principally to a term of

320   188 months imprisonment on each count to run concurrently. On February 13,

321   2012, the defendant filed a notice of appeal.

322

323                                         DISCUSSION

324         The defendant argues that her conviction should be vacated because of

325   numerous trial errors. In particular, the defendant raises the following grounds

326   for vacating her conviction: (i) denial of due process because she was tried in

327   shackles without a finding of necessity on the record; (ii) the Court’s failure to

328   investigate alleged juror misconduct; (iii) an improper Allen charge; (iv)

329   evidentiary errors; and (v) ineffective assistance of counsel. We find that the

330   defendant was improperly tried in shackles, the Court did not fulfill its

331   obligation to investigate the allegation of juror misconduct, the Court gave an

332   improper Allen charge, and certain lay and expert testimony was erroneously

333   admitted at trial. These errors occurred in the context of a relatively short trial




      of importation or possession with intent to distribute 50 grams or more of
      methamphetamine.


                                                   17
334   during which the jury deliberated for approximately three and a half hours

335   before returning a deadlock note, and then deliberated for approximately

336   another five hours before returning a verdict of guilty on both counts. Under all

337   the circumstances of this case, the cumulative effect of these errors was to cast

338   serious doubt on whether the defendant was provided due process of law at her

339   trial. Accordingly, we vacate the defendant’s conviction and remand for further

340   proceedings consistent with this opinion.

341

342                                             I.

343                                             A.

344         The defendant argues that her conviction should be vacated because she

345   was tried in shackles without a specific finding of necessity on the record by the

346   District Court Judge. It is beyond dispute that a defendant may not be tried in

347   shackles unless the trial judge finds on the record that it is necessary to use such

348   a restraint as a last resort to satisfy a compelling interest such as preserving the

349   safety of persons in the courtroom. “The law has long forbidden routine use of

350   visible shackles during the guilt phase; it permits a State to shackle a criminal



                                                     18
351   defendant only in the presence of a special need.” Deck v. Missouri, 544 U.S. 622,

352   626 (2005). This rule of fundamental fairness is a basic element of the due

353   process of law protected by the Constitution. Id. at 629. As the Supreme Court

354   has emphasized:

355         [T]o contemplate such a technique, much less see it, arouses a feeling
356         that no person should be tried while shackled and gagged except as
357         a last resort. Not only is it possible that the sight of shackles and
358         gags might have a significant effect on the jury’s feelings about the
359         defendant, but the use of this technique is itself something of an
360         affront to the very dignity and decorum of judicial proceedings that
361         the judge is seeking to uphold.
362
363   Illinois v. Allen, 397 U.S. 337, 344 (1970).

364         This Court has therefore held that a trial judge may order physical

365   restraints on a party only “when the court has found those restraints to be

366   necessary to maintain safety or security; but the court must impose no greater

367   restraints than are necessary, and it must take steps to minimize the prejudice

368   resulting from the presence of the restraints.” Davidson v. Riley, 44 F.3d 1118,

369   1122-23 (2d Cir. 1995). A court may not delegate this discretion to another party,

370   including the Bureau of Prisons or the United States Marshals, because the court

371   must “consider all the evidence and ultimately make the decision [for itself].” Id.



                                                     19
372   at 1123 (quoting Lemons v. Skidmore, 985 F.2d 354, 358 (7th Cir. 1993)); see

373   Hameed v. Mann, 57 F.3d 217, 222 (2d Cir. 1995). A judge may receive evidence

374   if there is any factual dispute relevant to trying a defendant in physical restraints.

375   See Hameed, 57 F.3d at 222. However, the ultimate decision to impose any

376   physical restraints during trial must be made by the District Court judge alone

377   and must be made on the record. See id. Moreover, “[w]hen the trial judge

378   delegates a decision, and gives no reason for the decision, that is not an exercise

379   of discretion but an absence of and an abuse of discretion.” Davidson, 44 F.3d at

380   1123 (quoting Lemons, 985 F.2d at 358)); see Hameed, 57 F.3d at 222.

381         In this case, there is no suggestion and certainly no finding on the record

382   why it was necessary to shackle the defendant, who had no prior criminal

383   history. There was no finding why the defendant was a threat to anyone or why

384   the presence of United States Deputy Marshals in the courtroom would not have

385   been sufficient to maintain the safety and security of all those present.

386   Accordingly, it was clear error and a violation of the defendant’s constitutional

387   right to due process of law to have required the defendant to stand trial in

388   shackles without a specific finding of necessity on the record by the trial judge.



                                                   20
389         During oral argument in this case, the Government explained the

390   defendant’s shackling in part by representing that it has been standard practice

391   in the NDNY for criminal defendants in custody to be shackled during trial

392   without a particularized finding of necessity on the record by the District Court

393   judge. Because that troubling representation indicated that the practice was

394   inconsistent with long-standing Supreme Court and Second Circuit precedent,

395   this Court ordered the Government to explain in detail the alleged practice of

396   trying defendants in shackles. After an initial incomplete response, the

397   Government submitted a letter explaining as follows:

398         [T]he Marshals Service advised . . . that defendants are neither
399         routinely nor arbitrarily shackled during jury trials. In those cases
400         where the Marshals Service believes that shackling is prudent or
401         necessary, the Marshals Service articulates the basis for its
402         recommendation to the trial judge. This recommendation is based
403         upon factors such as the defendant’s criminal history, the sentence
404         the defendant faces upon conviction and the defendant’s conduct
405         while incarcerated. In all cases, it is the trial judge who makes the
406         final determination regarding shackling. In the event the trial judge
407         agrees with the Marshals Service’s recommendation regarding
408         shackling, leg irons, not handcuffs or waist chains, generally are
409         utilized. Additionally, the Marshals Service made clear that they
410         make every effort to ensure that the leg irons are obscured from the
411         jury’s view, both inside and outside of the courtroom. . . .
412




                                                 21
413         [T]he judges [with the exception of one who could not be reached]
414         reported a practice consistent with the practice described by the
415         Marshals Service.
416
417         The judges in this District take into account any security concerns
418         raised by the Marshals Service that bear upon whether shackles
419         ought to be used in a particular case. Armed with that information,
420         the judges make an independent determination, on a case-by-case
421         basis, whether the use of shackles is warranted. The judges also
422         relayed that in the event shackles are used, every precaution is taken
423         to ensure that those shackles are not visible to the jury. . . .
424
425         One of the responding judges indicated that he informs the
426         defendant of his decision and provides the defendant an
427         opportunity to be heard. Other judges do not create a record of their
428         determinations; a record would be created if the defendant raised an
429         objection to the use of shackles.
430

431   (Letter of Richard S. Hartunian by Paul D. Silver, ECF No. 82 (Apr. 11, 2013), at 2)

432         The general procedures, to the extent that they were accurately portrayed

433   to this Court, do not conform to the requirements of clear Supreme Court and

434   Second Circuit precedent. No physical restraints may be imposed on a criminal

435   defendant during trial unless the District Court finds on the record that they are

436   a necessary last resort. Where the District Court finds that shackles are necessary

437   for the safety of the defendant or any persons in the courtroom, the Court must




                                                  22
438   ensure that the restraints are no greater than necessary to ensure safety during

439   trial, and the Court must take steps to minimize any prejudice to the defendant

440   from being tried in physical restraints. See Davidson, 44 F.3d at 1122-23. Any

441   finding of necessity and all accommodations made to minimize the extent of the

442   defendant’s restraint during trial or to ensure that the jury does not become

443   aware of any physical restraints on the defendant must be made on the record by

444   the District Court.

445         The Government argues that there is no basis for reversal unless the

446   shackles had a substantial and injurious effect on the jury’s verdict, and the

447   presence of the shackles could not have affected the jury’s verdict unless the jury

448   actually saw them. See Williams v. Woodford, 306 F.3d 665, 689 (9th Cir. 2002),

449   abrogated on other grounds by Williams v. Woodford, 384 F.3d 567 (9th Cir.

450   2004); Moon v. Head, 285 F.3d 1301, 1307 (11th Cir. 2002). The record is silent as

451   to whether any of the jurors saw the shackles during the trial. Defense counsel

452   made some effort to avoid having the jurors see the shackles when the defendant

453   took the stand to testify, but then—for whatever reason—he drew attention to




                                                  23
454   the shackling in the course of his summation. The jury was thus well aware of

455   the shackling during their deliberations.

456   While we could remand this case for an evidentiary hearing to determine when

457   the jurors first became aware of the shackles, any such hearing would be time

458   consuming and burdensome for the jurors. Moreover, the trial court erred in

459   permitting the defendant to be tried in shackles without a finding on the record

460   that there was a compelling reason to do so that could not be achieved by less

461   onerous means. It is unnecessary to remand this case for a hearing as to the

462   necessity of trying the defendant in shackles and when the jurors became aware

463   of the shackles because, as explained below, the cumulative effect of all the errors

464   denied the defendant a fundamentally fair trial.2 At any subsequent proceedings



      2 To the extent that the defendant asserts that defense counsel’s acquiescence in
      the decision to try the defendant in shackles and then to raise that fact with the
      jury during summation constitutes ineffective assistance of counsel, this
      argument is addressed infra at III.
             The Government argues that defense counsel’s decision to refer in
      summation to the physical restraints on the defendant constitutes waiver. See
      United States v. Quinones, 511 F.3d 289, 320-21 (2d Cir. 2007) (“The law is well
      established that if, as a tactical matter, a party raises no objection to a purported
      error, such inaction constitutes a true waiver which will negate even plain error
      review.” (internal quotation marks omitted)). However, it was error for the


                                                   24
465   consistent with this opinion, the District Court should decide on the record

466   whether shackling the defendant is necessary as a last resort to satisfy a

467   compelling reason, such as the preservation of safety in the courtroom.

468

469                                            B.

470         The defendant argues that her conviction should be reversed because the

471   District Court failed to investigate the allegation of juror misconduct that defense

472   counsel brought to the Court’s attention. Defense counsel moved for a mistrial

473   because he had heard from one of the alternate jurors that prior to deliberations

474   “some of the women on the jury had said that [the defendant] might be guilty,

475   [because] she’s here.” (Trial Tr. 684-85) The Court denied the motion for a

476   mistrial and declined to investigate the matter or to speak with the alternate




      Court to try the defendant in shackles without making a finding of necessity on
      the record, and that error contributed to the cumulative effect of a series of errors
      that denied the defendant a fundamentally fair trial. There is no indication that
      defense counsel waived that error. See id. Moreover, we do not know the
      rationale for referring to the shackles in summation and whether any of the
      jurors were aware of the shackles before that time.



                                                    25
477   regarding the jurors’ alleged comments even though the Court conceded that it

478   was not disputing the accuracy of the alternate juror’s account.

479         The alleged comments of the jurors as reported to defense counsel raise

480   two concerns: (i) that members of the jury were actually biased against the

481   defendant; and (ii) that the jury deliberated prematurely in violation of the

482   Judge’s instructions not to deliberate until they had heard all the evidence and

483   were instructed on the law. It is well established that at minimum, “[d]ue

484   process means a jury capable and willing to decide the case solely on the

485   evidence before it, and a trial judge ever watchful to prevent prejudicial

486   occurrences and to determine the effect of such occurrences when they happen.”

487   Smith v. Phillips, 455 U.S. 209, 217 (1982). Furthermore, “jurors must not engage

488   in discussions of a case before they have heard both the evidence and the court’s

489   legal instructions and have begun formally deliberating as a collective body.”

490   See United States v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (quoting United States v.

491   Resko, 3 F.3d 684, 688 (3d Cir. 1993)). Where the District Court instructs the jury

492   to refrain from premature deliberations, as the Court did in this case, and the

493   jury nevertheless discusses the case prior to the close of trial, that premature



                                                  26
494   deliberation may constitute juror misconduct. Cox, 324 F.3d at 86. The

495   allegation of premature deliberations in this case was exacerbated by the fact that

496   the alternate juror allegedly said that jurors had questioned the presumption of

497   innocence for the defendant simply because she was on trial.

498         Faced with a credible allegation of juror misconduct during trial, a court

499   has an obligation to investigate and, if necessary, correct the problem. United

500   States v. Peterson, 385 F.3d 127, 134 (2d Cir. 2004); Cox, 324 F.3d at 88. The

501   District Court “has broad flexibility in such matters, especially when the alleged

502   prejudice results from statements by the jurors themselves, and not from media

503   publicity or other outside influences.” United States v. Thai, 29 F.3d 785, 803 (2d

504   Cir. 1994) (internal quotation marks omitted); see Cox, 324 F.3d at 87. A trial

505   judge’s handling of juror misconduct and the Court’s findings with respect to a

506   jury’s impartiality are reviewed for abuse of discretion. Peterson, 385 F.3d at 134.

507         In this case, the trial Court abused its discretion by not conducting any

508   inquiry about what the Court acknowledged might well be an accurate allegation

509   of juror misconduct. Defense counsel asked for further investigation and a

510   curative instruction, but the Court denied both requests. Without ever



                                                  27
511   disturbing the jury deliberations, the Court could have asked the alternate juror

512   what exactly was said and by whom, and then made a determination of what, if

513   any, further investigation was required. Only if the preliminary inquiry

514   produced a specific and credible reason to conduct further inquiries would it

515   have been necessary to pursue further measures. See id. at 133-36 (finding that

516   the examination and recusal of an “unbalanced” juror together with satisfactory

517   responses by the remaining jurors as to their impartiality was within the trial

518   court’s discretion). The Court abused its discretion by failing to conduct any

519   inquiry to determine if the allegation of juror misconduct was true.

520

521                                           C.

522         The defendant argues that her conviction should be vacated because the

523   Court gave the jury an improper Allen charge. After approximately four hours

524   of deliberations, which resulted in a deadlock note and a modified Allen charge,

525   the jury returned a note seeking clarification of the charges and the instruction on

526   guilt beyond a reasonable doubt. The Court and the parties agreed to dismiss

527   the jury for the weekend and to respond to their questions on Monday morning.



                                                   28
528   The Judge called the jury into the courtroom, read aloud the jury’s note, and

529   gave the jury additional instructions. Those instructions included the following

530   language: “I believe that on Monday, after you’ve had a restful weekend and are

531   given instructions by me, when you retire into the jury deliberation room and

532   you give each other fair and full consideration, you will be able to arrive at a just

533   verdict.” (Trial Tr. 692) The Court also told the jury: “you should not feel any

534   pressure of time in reaching your verdict. You should listen to each other’s

535   views and work as diligently as you can to arrive at a unanimous verdict.” (Trial

536   Tr. 692)

537         The parties do not dispute that this instruction was a modified Allen

538   charge. The defining characteristic of an Allen charge is that “it asks jurors to

539   reexamine their own views and the views of others.” Spears, 459 F.3d at 204 n.3.

540   An Allen charge is unconstitutional if it is coercive in the context and

541   circumstances under which it is given. Id. at 205.

542         This Court has previously explained the history of the Allen charge:

543         In Allen, the Supreme Court approved of supplemental instructions
544         given to a deadlocked jury urging them to continue deliberating and
545         for the jurors in the minority to listen to the majority’s arguments



                                                   29
546         and ask themselves whether their own views were reasonable under
547         the circumstances. The instructions in Allen included statements
548         directing that “the verdict must be the verdict of each individual
549         juror, and not a mere acquiescence in the conclusion of his fellows,”
550         and that it was the jury's duty “to decide the case if they could
551         conscientiously do so.” These statements served to remind jurors in
552         the minority that a verdict was not required, and that no juror
553         should surrender the juror’s conscientiously held views for the sake
554         of rendering a verdict.
555
556   Id. at 204-05.

557         The original Allen charge has been criticized because it focused on the

558   suggestion that jurors in the minority should reconsider their position. In more

559   recent times, courts have tended to use charges that do not contrast the majority

560   and minority positions, but ask all jurors to re-examine their own views and the

561   views of others. Id. at 204 n.4.

562         In Spears, this Court accepted the parties’ representations that the Judge

563   had given a modified Allen charge and applied the standard developed in

564   Lowenfield v. Phelps, 484 U.S. 231 (1988), to determine whether that charge was

565   coercive. Lowenfield requires the Court to evaluate “the potential coercive effect

566   of a charge to a deadlocked jury . . . in its context and under all the

567   circumstances.” Spears, 459 F.3d at 205 (quoting Lowenfield, 484 U.S. at 237)



                                                   30
568   (internal quotation marks omitted); see United States v. Vargas-Cordon, No. 11-

569   5165, 2013 WL 4046274, at *7 (2d Cir. Aug. 12, 2013). This Court observed that

570   “when an Allen charge directs jurors to consider the views of other jurors,

571   specific cautionary language reminding jurors not to abandon their own

572   conscientious beliefs is generally required.” Spears, 459 F.3d at 205; see Smalls v.

573   Batista, 191 F.3d 272, 279 (2d Cir. 1999) (“[A] necessary component of any Allen-

574   type charge requires the trial judge to admonish the jurors not to surrender their

575   own conscientiously held beliefs.”).

576         Evaluating the charge in Spears in the circumstances and the context in

577   which it was given, this Court found that the modified Allen charge was not

578   coercive. “The charge asked the jurors to consider the facts ‘with an attempt to

579   reach a verdict if that be possible,’ and to continue deliberations ‘with a view

580   toward arriving at a verdict if that’s possible.’” Spears, 459 F.3d at 206.

581   Although the trial court had failed to include the admonition not to give up

582   conscientiously held beliefs, “the charge did not urge the jurors to listen to the

583   views of other jurors with whom they disagreed or attempt to persuade each

584   other,” and “the original charge, given to the jury earlier that day, did include



                                                   31
585   cautionary language telling jurors that they had a right to stick to their

586   arguments and stand up for their own strong opinions.” Id. This Court also

587   found it significant that defense counsel did not object to the charge. Id.

588   Moreover, following the Allen charge, the jury continued to deliberate for the

589   rest of the day and ultimately could not reach a verdict with respect to one of the

590   defendants. Id. at 207. This Court reasoned, “[t]his result strongly indicates that

591   individual attention was given to each defendant as to each count, and that the

592   charge did not cause jurors to surrender their opinions merely to reach a result.”

593   Id. (quoting United States v. Fermin, 32 F.3d 674, 680 (2d Cir. 1994), overruled on

594   other grounds by Bailey v. United States, 516 U.S. 137 (1995)) (internal quotation

595   marks omitted).

596         The issue in this case is whether the modified Allen charge given at the

597   end of the day was coercive in the circumstances and context in which it was

598   given. The Court was aware that the jury was deadlocked, and the Court had

599   already given a modified Allen charge. The jury had continued to deliberate and

600   asked for instructions on reasonable doubt and the absence of evidence.

601   Repeating a modified Allen charge at this time, without a request from the jury,



                                                  32
602   could reasonably be perceived by the jurors as the Court communicating its

603   insistence on the jury reaching a unanimous verdict. See United States v.

604   Ruggiero, 928 F.2d 1289, 1299 (2d Cir. 1991) (finding that a repeated Allen charge

605   is not “inevitably” coercive and noting that both instructions included cautionary

606   language counseling jurors not to surrender conscientiously held views); see also

607   United States v. Barone, 114 F.3d 1284, 1305 (1st Cir. 1997) (“[C]aution needs to

608   be used before the modified Allen charge is given for a second time.”).

609         The Allen charge at issue encouraged the jurors to exchange views with

610   one another, consider each other’s views, and work diligently to reach a verdict,

611   but did not contain the admonition not to give up conscientiously held beliefs.

612   The charge did more than simply advise jurors to continue their deliberations.

613   Unlike the charge in Spears, the charge in this case did not suggest that failing to

614   reach a unanimous verdict was permissible. To the contrary, the Court stated

615   that it “believe[d]” that the jury would “arrive at a just verdict” on Monday.

616   (Trial Tr. 692)

617         A reasonable juror could view this instruction as lending the Court’s

618   authority to the incorrect and coercive proposition that the only just result was a



                                                  33
619   verdict. However, a verdict is just only if it represents the conscientiously held

620   beliefs of all jurors. Under these circumstances, the Court should have given the

621   balancing, cautionary instruction that no juror should give up conscientiously

622   held beliefs. See Smalls, 191 F.3d at 278.

623   The failure to give such a cautionary instruction was coercive in these

624   circumstances although there are some factors that argue against concluding that

625   the modified Allen charge given at the end of the day was coercive under all the

626   circumstances: the previous Allen charge had included cautionary language;

627   defense counsel did not find the charge sufficiently coercive to object; and the

628   jury deliberated for about four and a half hours on the following Monday after

629   the weekend break before reaching a verdict. It is unnecessary to decide whether

630   these factors were sufficient to overcome the coercive aspects of the modified

631   Allen charge. The Court should have refrained from giving an unsolicited

632   modified Allen charge or, at the very least, should have included the balancing,

633   cautionary language. The defective charge can be considered in determining the

634   fairness of the trial, particularly given that the jurors expressed difficulty in

635   reaching a unanimous verdict.



                                                    34
636                                          II.

637         The defendant argues that her conviction should be vacated because of

638   numerous evidentiary errors. It is only necessary to deal with two such errors

639   that may be relevant on remand. We find that Officer Rabideau’s testimony

640   about how the fuel tank functions and Agent Linstad’s testimony on the ultimate

641   issue of whether the defendant knew she possessed drugs were erroneously

642   admitted at trial.

643

644                                          A.

645         The defendant argues that the Court admitted the lay opinion testimony of

646   Officer Rabideau regarding how the fuel tank in the rental car functions in

647   violation of Federal Rule of Evidence 701 because that testimony was based on

648   specialized knowledge. The defendant argues that the admission of this

649   testimony prejudiced her because she did not have the opportunity to present a

650   rebuttal expert or to prepare to cross-examine Officer Rabideau on the technical

651   subject of how the fuel tank operates. The testimony was important to the

652   Government’s case because it supported the Government’s argument that the



                                                   35
653   fuel gauge must have been showing “empty” throughout the trip from Canada

654   and that the defendant was not being truthful when she explained that she only

655   saw the warning light shortly before reaching the border.

656         Federal Rule of Evidence 701 limits lay witness testimony to testimony that

657   is “(a) rationally based on the witness’s perception; (b) helpful to clearly

658   understanding the witness’s testimony or to determining a fact in issue; and (c)

659   not based on scientific, technical, or other specialized knowledge within the

660   scope of Rule 702.” Fed. R. Evid. 701. Under Federal Rule of Evidence 701, “lay

661   opinion must be the product of reasoning processes familiar to the average

662   person in everyday life.” United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005).

663   This rule “prevent[s] a party from conflating expert and lay opinion testimony

664   thereby conferring an aura of expertise on a witness without satisfying the

665   reliability standard for expert testimony set forth in Rule 702 and the pre-trial

666   disclosure requirements set forth in Fed. R. Crim. P. 16 . . . .” Id.

667         The defendant argues that the testimony at issue was not rationally based

668   on Officer Rabideau’s perceptions, but on expert or specialized knowledge. The

669   relevant portion of Officer Rabideau’s testimony is as follows:



                                                   36
670         On the outside of this cylinder, there’s a float and that’s -– the float is
671         what shows that the gas level, so as the float goes down, the gas
672         level in the vehicle obviously goes down. So, when the drugs were
673         placed and the float was pushed to the bottom, drugs holding that to
674         the bottom would always read zero kilometers to empty. That
675         would always be on empty.
676
677   (Trial Tr. 287-88) Officer Rabideau also testified that he had not been to

678   “mechanic school,” but had “looked in the gas tank prior to this,” and that his

679   experience investigating other cars at the border served as a basis for his

680   knowledge of how the fuel tank functions. (Trial Tr. 309)

681         If the opinion of a witness “rests in any way upon scientific, technical, or

682   other specialized knowledge, its admissibility must be determined by reference

683   to Rule 702, not Rule 701” because “lay opinion must be the product of reasoning

684   processes familiar to the average person in everyday life.”      Garcia, 413 F.3d at

685   215 (internal quotation marks and citation omitted). Accordingly, this Court has

686   held that “the foundation requirements of Rule 701 do not permit a law

687   enforcement agent to testify to an opinion so based and formed if the agent’s

688   reasoning process depended, in whole or in part, on [the agent’s] specialized

689   training and experience.” Id. at 216.




                                                   37
690            Officer Rabideau’s testimony was improperly admitted over the

691   defendant’s objection because his opinion was based on specialized training and

692   experience. Officer Rabideau did more than simply describe what he found in

693   the gas tank and what he perceived. He described how the float on the outside

694   of the gas tank worked and why the gas gauge would have registered zero to

695   empty while the drugs were in the gas tank. As the Government concedes, this

696   testimony was based on knowledge that Officer Rabideau acquired inspecting

697   other cars at the border. That he did not attend “mechanic school” does not

698   render his testimony admissible under Federal Rule of Evidence 701. Officer

699   Rabideau acquired his knowledge of how a fuel tank operates through his

700   experience as a border agent inspecting vehicles, not through the reasoning

701   processes of the average person. Therefore, the admission of this testimony was

702   error.

703

704                                             B.

705            The defendant argues that it was error to permit Agent Linstad to testify to

706   the ultimate issue of the defendant’s knowledge of drugs in the car in violation of



                                                     38
707   Federal Rule of Evidence 704. Federal Rule of Evidence 704(b) provides: “In a

708   criminal case, an expert witness must not state an opinion about whether the

709   defendant did or did not have a mental state or condition that constitutes an

710   element of the crime charged or of a defense. Those matters are for the trier of

711   fact alone.” Fed. R. Evid. 704(b). The defendant argues that the admission of

712   Agent Linstad’s testimony that the defendant “realized” narcotics were in the

713   rental car was improper expert testimony on the ultimate issue of the defendant’s

714   knowledge of whether there were drugs in the rental car, which was a critical

715   element of the charges against the defendant. (Trial Tr. 589)

716         It is well established that Rule 704(b) “disables even an expert from

717   expressly stating the final conclusion or inference as to a defendant’s actual

718   mental state at the time of a crime.” United States v. DiDomenico, 985 F.2d 1159,

719   1164 (2d Cir. 1993) (internal quotation marks and citations omitted). Such

720   testimony is prohibited because it “poses a uniquely heightened danger of

721   intruding on the jury’s function.” Id.; see id. at 1164-65 (collecting cases).

722         Agent Linstad’s testimony regarding whether the defendant “realized”

723   that there were drugs in the car was erroneously admitted because it is expert



                                                   39
724   testimony about the defendant’s state of mind. Indeed, whether the defendant

725   “realized” that there were drugs in the car was the key issue in this case.

726   Moreover, Agent Linstad used the opportunity to summarize some of the

727   Government’s evidence as to why the defendant must have known that she was

728   transporting drugs, which included the defendant’s inconsistent statements, the

729   strong odor of gasoline, the fuel light, and the presence of masking agents. The

730   Court had previously warned the parties that it would not permit such testimony

731   about the defendant’s knowledge, but when it was actually introduced, the

732   Court erroneously failed to strike it. The admission of this testimony at trial was

733   plain error. See United States v. Dukagjini, 326 F.3d 45, 55 (2d Cir. 2002) (finding

734   error where a case agent certified as an expert “acted at times as a summary

735   prosecution witness[, with] the effect [of] . . . bolstering . . . the testimony” of

736   other witnesses and “impinging upon the exclusive function of the jury”).

737

738                                              III.

739         The defendant argues that her conviction should be reversed because her

740   counsel provided constitutionally ineffective assistance at trial. To succeed on an



                                                        40
741   ineffective assistance of counsel claim, a defendant must demonstrate that

742   counsel’s choices were not strategic because they “were outside the wide range

743   of professionally competent assistance,” and “that there is a reasonable

744   probability that, but for counsel's unprofessional errors, the result of the

745   proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

746   690, 694 (1984). However, a cold trial record usually “will not disclose the facts

747   necessary to decide either prong of the Strickland analysis.” Massaro v. United

748   States, 538 U.S. 500, 505 (2003). Therefore, “in most cases a motion brought

749   under § 2255 is preferable to direct appeal for deciding claims of ineffective

750   assistance.” Id. at 504.

751         When a defendant raises a claim of ineffective assistance of trial counsel,

752   this Court may (i) decline to hear the claim and permit the defendant to raise the

753   claim as part of a subsequent motion filed pursuant to 28 U.S.C. § 2555; (ii)

754   remand the claim to the District Court for fact-finding; or (iii) decide the claim

755   based on the record before it. United States v. Doe, 365 F.3d 150, 152 (2d Cir.

756   2004). In this case, it is unnecessary to reach the merits of the ineffective

757   assistance of counsel claim because the conviction must be vacated on other



                                                   41
758   grounds. Moreover, because the conviction is being vacated there will be no

759   occasion for a section 2255 motion. Therefore, we decline to reach the

760   defendant’s claim of ineffective assistance of trial counsel.

761

762                                            IV.

763         This trial was marred by significant errors, including: trying the defendant

764   in shackles without a finding of necessity on the record; failing to investigate

765   alleged juror misconduct; and providing an improper Allen charge to the jury.

766   There were also serious evidentiary errors, in particular the improper admission

767   of lay opinion testimony and the failure to strike expert testimony regarding the

768   defendant’s realization that there were drugs in her rental car. These errors

769   occurred in the context of a short trial in which the evidence was introduced in

770   less than three days. This was a close case that prompted approximately eight

771   hours of jury deliberations and a jury note asking for help because the jury was

772   hopelessly deadlocked. It was only after the Judge instructed the jury that the

773   Court “believe[d]” that they would reach a verdict that the jury did just that.




                                                     42
774         Individually, these errors may not provide a basis for vacating the

775   defendant’s conviction. However, when considered together, in the context of

776   this trial, these errors call into serious doubt whether the defendant received the

777   due process guarantee of fundamental fairness to which she and all criminal

778   defendants are entitled. See Taylor v. Kentucky, 436 U.S. 478, 487 n.15 (1978);

779   see, e.g., United States v. Al-Moayad, 545 F.3d 139, 178 (2d Cir. 2008); United

780   States v. Guglielmini, 384 F.2d 602, 607 (2d Cir. 1967). Therefore, we VACATE

781   the judgment of the District Court and REMAND for proceedings consistent

782   with this opinion.

783

784

785                                    CONCLUSION

786         We have considered all of the arguments of the parties. To the extent not

787   specifically addressed above, they are moot. For the reasons explained above,

788   we VACATE the judgment of the District Court and REMAND for proceedings

789   consistent with this opinion.




                                                  43
