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July 15, 2020 Trial Tactics

Nullification? No!

Stephen A. Saltzburg

Judges really do not like the idea of jury nullification because they regard it as a threat to the rule of law and to their own authority to determine what the law is. But sometimes even judges can be pushed to the point where they are sympathetic to a nullification argument. We examine one such case.

The Facts

Although pretrial proceedings were not yet completed when the Second Circuit rendered its opinion in United States v. Manzano (In re United States), 945 F.3d 616 (2d Cir. 2019), the basic facts are easily stated. In October 2016, Connecticut law enforcement officers received information that a 15-year-old girl, M.M., had been in a sexual relationship with Yehudi Manzano, the 31-year-old landlord of the building where the girl lived. The state conducted an investigation, officers searched Manzano’s cell phone pursuant to a warrant, and they discovered a video of M.M. and Manzano engaged in sexually explicit conduct.

M.M. was aware that Manzano was making the video and thereby recording their sexual activity. It seemed clear that Manzano did not threaten M.M. or use force to compel her to engage in the sexual conduct, but under Connecticut law the 15-year-old M.M. was deemed too young to provide valid consent to sexual activity. Manzano had a personal Google Photos account and he used Internet servers located outside of Connecticut to upload the video to his personal folder without otherwise distributing it. Eventually, Manzano unsuccessfully attempted to delete the video from his folder.

The state investigators, after discovering the video on the phone, referred the matter to federal investigators. Whether or not Manzano knew his deletion attempt had failed, the video remained in the cloud storage where digital forensic examiners discovered it in connection with Manzano’s personal account.

So, the reality was that Manzano distributed to himself the video he himself had taken. There was no suggestion in the record that the video was ever shared with anyone else or that anyone aside from Manzano ever saw the video until the digital forensic examiners came upon it.

The Charges

In May 2018, a grand jury sitting in Connecticut returned an indictment charging Manzano with one count of production of child pornography, in violation of 18 U.S.C. § 2251(a) and punishable by a mandatory minimum term of 15 years’ imprisonment, and one count of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1) and punishable by a mandatory minimum term of five years’ imprisonment.

The Defense Motion

Manzano filed a pretrial Motion to Permit Counsel to Argue Jury Nullification, in which he sought “permission to make the jury aware of the penalty, and to argue that the [g]overnment’s application of the law to the particular facts of this case is an obscene miscarriage of justice.” Manzano argued that “[b]ut for [M.M.’s] age, the contact was consensual,” and “[b]ut for the fact that his telephone was seized pursuant to a warrant, no one would ever have had access to the film.”

Manzano acknowledged that the government “may well be able to prove the elements of the [production] offense,” but he insisted that “the conduct at issue here, while perhaps not innocent, [was] in no way so sinister as to warrant” the 15-year mandatory minimum penalty. The government opposed the motion and asked that defense counsel “be precluded, through a jury address, witness examination, or offer of evidence, from informing the jury about the sentencing consequences or suggesting to the jury that they may acquit if they find the [g]overnment’s prosecution or the sentencing consequences are unjust.”

The Trial Judge’s Ruling and the Path to Mandamus

Four days before the trial was to begin, Chief Judge Stefan R. Underhill held a pretrial conference at which decision was reserved on the government’s motion. The next day Manzano again requested that the court rule on his motion. On the day the trial was scheduled to begin, the district court held another pretrial conference. The court granted Manzano’s motion to permit counsel to argue jury nullification but reserved decision on the admissibility of evidence related to sentencing consequences. The court began its explanation of its ruling with the comment, “[t]his is a shocking case . . . that calls for jury nullification.” The court then recognized that it was not permitted to instruct the jury on nullification:

[T]he law precludes me from charging the jury, the law precludes me from encouraging the jury, and I don’t intend to do that. But if evidence comes in about the length of sentence, or if [defense counsel] chooses to argue, I do not feel that I can preclude that. I don’t feel I’m required to preclude that. And I think justice requires that I permit that. So it’s not going to come from me, but I think justice cannot be done here if the jury is not informed, perhaps by [defense counsel], that that’s the consequence here.

The government filed an emergency motion to adjourn the trial so that it could seek the Solicitor General’s approval to file a writ of mandamus to the US Court of Appeals for the Second Circuit. The trial judge held a hearing the same day on the government’s motion, granted the motion, excused the jury, and adjourned the trial pending a resolution of mandamus issues.

The Second Circuit Majority

The majority found mandamus review appropriate in part because a defense nullification argument, if successful, would result in an acquittal so that double jeopardy would prevent the government from obtaining review of the trial judge’s ruling after the trial. The majority concluded that the trial judge had an erroneous view of the law:

Here, the district court in fact recognized that our case law “preclude[d] it from encouraging the jury” to nullify, but then proceeded to draw an arbitrary distinction between encouraging the jury via jury instructions—which it properly deemed impermissible—and granting defense counsel’s motion to argue nullification. This distinction is unsupported by our case law.

In [United States v.] Thomas [116 F.3d 606 (2d Cir. 1997)], we concluded that “a presiding judge possesses both the responsibility and the authority to dismiss a juror whose refusal or unwillingness to follow the applicable law becomes known to the judge during the course of trial.” 116 F.3d at 617. In reaching that conclusion, we explained in no uncertain terms that “trial courts have the duty to forestall or prevent” jury nullification. Id. at 616. Our reasoning was thus not limited to the specific facts at issue. Instead, “tak[ing] th[e] occasion to restate some basic principles regarding the character of our jury system,” we “categorically reject[ed] the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.” Id. at 614. We have since applied the principles set forth in Thomas beyond the specific circumstances of that case, * * *, and we have no hesitation doing so again here.

Applying the principles enunciated in Thomas, we emphatically reject the rule, advanced by Judge Underhill as amicus, that district courts are free to permit jury nullification arguments whenever they feel justice so requires—in other words, in any case in which the court strongly disagrees with the government’s charging decisions and the attendant sentencing consequences. As a practical matter, there is no meaningful difference between a court’s knowing failure to remove a juror intent on nullification, a court’s instruction to the jury that encourages nullification, and a court’s ruling that affirmatively permits counsel to argue nullification. In each of these situations, the conduct in question subverts the jury’s solemn duty to “take the law from the court, and apply that law to the facts of the case as they find them to be from the evidence.” Sparf v. United States, 156 U.S. 51, 102, 15 S. Ct. 273, 39 L. Ed. 343 (1895); see United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983) (“We therefore join with those courts which hold that defense counsel may not argue jury nullification during closing argument.”); see also, e.g., United States v. González-Pérez, 778 F.3d 3, 18–19 (1st Cir. 2015); United States v. Dougherty, 473 F.2d 1113, 1130–37, 154 U.S. App. D.C. 76 (D.C. Cir. 1972). District courts have a duty to forestall or prevent such conduct, see Thomas, 116 F.3d at 616, and the district court in this case abdicated its duty by ruling that defense counsel could argue jury nullification.

The court recognized that Chief Judge Underhill had reason to be concerned about the harshness of the potential penalties as compared to the underlying conduct, but found this insufficient to warrant his ruling: “We have no doubt that in granting Manzano’s motion to argue for jury nullification, Judge Underhill was acting under the sincere belief that his ruling was consistent with, and perhaps mandated by, the ends of justice. Nevertheless, individual judges, cloaked with the authority granted by Article III of the Constitution, are not at liberty to impose their personal view of a just result in the face of a contrary rule of law.”

Judge Barrington D. Parker, Concurring in Part and Dissenting in Part

Judge Parker dissented from the use of mandamus to reverse the nullification ruling by Chief Judge Underhill and expressed solidarity with the approach taken by the trial judge:

We are fortunate that the prosecutors in this Circuit nearly always bring a high degree of professionalism, good judgment, and common sense to bear in the exercise of their responsibilities. This case presents the unusual circumstance where a conscientious jurist is confronted with a charging decision that, in his considered judgment, reflects an abuse of prosecutorial power. Charging decisions are, of course, by and large the exclusive province of prosecutors.

* * *

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted. But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. * * * Judges are not, of course, free to disregard the limitations of the law they are charged with enforcing under the guise of exercising supervisory powers or at other times. [United States v.] Payner, 447 U.S. [727,] at 737 [1980]. But since Payner, we have recognized that within their supervisory powers, courts should “not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standards of fairness.” [United States v.] Johnson, 221 F.3d [83,] at 96 [(2d Cir. 2000] (quoting United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999)). This requirement applies with particular force in contexts such as charging and sentencing, especially those involving mandatory minimum sentences, where the Government plays an “often decisive role.” Id.

Whether Judge Underhill went too far is debatable. But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification.

Judge Parker argued that the law on nullification in his Circuit is not as clear as the majority claimed:

More pointedly, the entire discussion of jury nullification upon which the majority now relies was unnecessary to the ultimate holding in Thomas and was, therefore, dicta that cannot support or justify mandamus relief. Only holdings create “established law”; language that is unnecessary to those holdings does not. See Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1282 (2006) (“If a rule was declared only in dictum, the question remains undecided.”). The holding of Thomas was that a district judge may properly remove for cause a juror who refuses to follow the law only if the record leaves no doubt that the juror would engage in nullification. 116 F.3d at 618, 622, 625. The question whether a district court has the discretion, in an appropriate case, to permit a defense lawyer to discuss jury nullification was not before the Court, was not decided by the Court, and, as noted, remains an open question in this Circuit.

In addition to being an open question, it is a difficult and nuanced one. Closing arguments of defense counsel have long been recognized as a fundamental aspect of a fair trial, and a judge presiding over trial “must be and is given great latitude” over the scope of summations. Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). Appellate courts are not well-suited, particularly on truncated records involving ongoing proceedings, to ensure that a trial is fair.

The extent to which Judge Parker and Judge Underhill had virtually identical views was emphasized in Judge Parker’s suggested alternative to granting mandamus relief: “There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent. The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.”

But the majority would have none of it:

Contrary to the dissent’s suggestion, the fact that we might disagree with the government’s charging decision, or lack a full understanding of that decision, provides no basis for holding this matter in abeyance and remanding so that the prosecutors can “revisit their charging decision” or “provide information as to why they believed their decision was appropriate.” Subject to narrow exceptions not implicated here, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”

United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996); see also, e.g., United States v. Ng, 699 F.2d 63, 68 (2d Cir. 1983) (“Although one may reasonably disagree with the [government’s] judgment in the matter, the evaluation of charges clearly rested within [its] prosecutorial discretion.”).

Admissibility of the Mandatory Minimum Evidence

Both the majority and Judge Parker agreed that mandamus was inappropriate as applied to Chief Judge Underhill’s decision not to make a definitive ruling on the admissibility of the mandatory minimum evidence. The majority reasoned as follows:

As for when an evidentiary ruling must be made, district courts enjoy broad discretion to defer ruling on a pretrial motion for “good cause.” Fed. R. Crim. P. 12(d); see also United States v. Barletta, 644 F.2d 50, 57–59 (1st Cir. 1981). A district court may defer ruling where, for example, the resolution of a pretrial motion might depend in part upon evidence to be introduced at trial.

* * *

The government attempts to cut through these layers of discretion by arguing, in essence, that the district court committed clear legal error (and thus a clear abuse of discretion) by failing to preclude evidence of the mandatory minimum sentences, which will be offered solely for the improper purpose of encouraging nullification. If we were confident in the premise that evidence of sentencing consequences will be offered solely for that improper purpose, we would agree that the district court clearly erred in failing to preclude such evidence, even at the pretrial stage. As the government correctly argues, there is no difference between improperly permitting defense counsel to argue nullification and admitting evidence for the sole purpose of encouraging nullification. See United States v. Funches, 135 F.3d 1405, 1409 (11th Cir. 1998) (“Because the jury enjoys no right to nullify criminal laws, and the defendant enjoys a right to neither a nullification instruction nor a nullification argument to the jury, the potential for nullification is no basis for admitting otherwise irrelevant evidence.”). Evidence admitted solely to encourage nullification is by definition irrelevant, and thus inadmissible, regardless of what other evidence might be introduced at trial. See Fed. R. Evid. 401–02; Shannon v. United States, 512 U.S. 573, 579, 114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994).

On the sparse pretrial record in this case, however, it is not clear whether Manzano will seek to introduce evidence of sentencing consequences solely for the purpose of encouraging nullification. Indeed, at oral argument, defense counsel proffered an additional purpose for such evidence. Specifically, counsel stated that he may offer as impeachment evidence M.M.’s purported Facebook post of the government’s press release setting forth the mandatory minimums for the purpose of showing M.M.’s bias or improper motive. In that event, given that there is no “absolute prohibition” on exposing the jury to sentencing consequences, Shannon, 512 U.S. at 588; see also [United States v.] Polouizzi, 564 F.3d [142,] at 161 [(2d Cir. 2009)], the district court would need to assess whether the alleged impeachment evidence is relevant based on how the trial unfolds (e.g., whether M.M. testifies and the nature of her testimony), and, if it is, whether it passes muster under Rule 403, see, e.g., United States v. DiMarzo, 80 F.3d 656, 660 (1st Cir. 1996). Thus, we cannot rule out the possibility that the admissibility of sentencing consequences will depend at least in part on events that will unfold at trial. In these circumstances, the district court’s decision to defer ruling on the admissibility of sentencing consequences until after the commencement of trial was not clearly and indisputably outside the range of permissible decisions. * * *


Jury nullification has been controversial for a long time. It has a sometimes glorious history—as when grand juries would not indict individuals who participated in the Boston Tea Party—and a sometimes horrendous history—as when trial juries in the South would not convict white defendants who violated the civil rights of African Americans. The ruling by Chief Judge Underhill surely is eye-catching. When was the last time a federal judge stated aloud, “[t]his is a shocking case . . . that calls for jury nullification”? And it is amazing to have a court of appeals judge respond to such a statement by saying, “I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so.”

So who is right here? History as yet gives no final answer.

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Stephen A. Saltzburg


Stephen A. Saltzburg is the Beverly Woodbury University professor at the George Washington University School of Law in Washington, DC.