United States v. Nieves

58 F.4th 623

UNITED STATES of America, Appellee,

v.Christian NIEVES, also known as Sealed Defendant 1, Defendant-appellant,Elias Polanco, also known as Sealed Defendant 2, Defendant.

Docket No. 21-1901-cr

August Term, 2022

United States Court of Appeals, Second Circuit.

Argued: October 28, 2022

Decided: January 26, 2023

Jun Xiang, Assistant United States Attorney (Allison Nichols, Karl Metzner, Assistant United States Attorneys, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Edward S. Zas, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant.

Before: Lynch, Lee, and Robinson, Circuit Judges.

Gerard E. Lynch, Circuit Judge:

"[W]e have never reversed a conviction for the failure to ask a particular question of prospective jurors." United States v. Bright , No. 20-3792, 2022 WL 53621, at *1 (2d Cir. Jan. 6, 2022) (summary order). That is no great surprise: district judges are afforded broad discretion in conducting voir dire. That discretion, however, is not boundless.

Christian Nieves ("Nieves") challenges his conviction, by jury trial, on one count of witness retaliation. The essence of his appeal is that the district court's (Jed S. Rakoff, J. ) abbreviated voir dire left him, and the district court, unable to meaningfully screen prospective jurors for bias against gang members, rendering Nieves's trial fundamentally unfair. While we disagree with Nieves's more ambitious arguments on appeal that various individual district court decisions in connection with voir dire were, on their own, per se reversible – including his contention that the district court was required specifically to ask prospective jurors about gang-related bias – we agree that under these circumstances, the district court abused its discretion by failing to take any of several possible steps that could have effectively screened prospective jurors for such bias, or to take other steps to counter any bias that may in fact have existed among the venire. We therefore VACATE Nieves's conviction and REMAND to the district court for a new trial.

BACKGROUND

I. The Government's Case against Nieves

A. The Theory of the Case

In May 2019, Nieves – who also goes by the name Eric Rosario and the moniker "White Boy" – was indicted on four counts: witness retaliation in violation of 18 U.S.C. § 1513(b)(1) (Count One); conspiring with codefendant Elias Polanco to commit witness retaliation in violation of 18 U.S.C. § 1513(f) (Count Two); witness tampering in violation of 18 U.S.C. § 1512(b)(3) (Count Three); and, again with Polanco, conspiring to commit witness tampering in violation of 18 U.S.C. § 1512(k) (Count Four).

Those charges stemmed from a February 2019 clash between Nieves and Miguel Carela. Both men were members of the Trinitarios, a "violent gang" of Dominican-American origin. App'x 126. The government's theory was that Carela's decision to testify for the government in a separate 2018 criminal trial ran afoul of the group's strict "code of silence," which includes a pledge not to cooperate with law enforcement. App'x 630. Carela, again taking the stand in this case, testified that after his 2018 testimony and subsequent release from prison, he confided in two Trinitario peers that he "didn't want to be part of that [Trinitarios] life anymore." App'x 255.

According to the government, Carela's perceived disloyalty made him a marked man. On February 5, 2019, after encountering Carela on a Bronx sidewalk, Nieves pursued and physically confronted Carela, slashing Carela's face with a razor blade and running off with his wallet and sneakers. Although the parties disputed some of these details at trial, including whether there was actually a slashing or whether this was merely a fistfight, the basic fact that the two men fought was not in dispute.

Rather, the trial centered on why they fought. While Nieves characterized the incident as an unremarkable "Bronx street fight," App'x 1004, the government construed Nieves's motivations as both retaliatory and proactive – i.e., as witness retaliation (for Carela's past cooperation) and witness tampering (to discourage future cooperation). In support of that theory, the government elicited testimony from Carela that Nieves told him in the midst of the fight that "[t]his is happening to you for being a snitch." App'x 265-66. According to Carela, he received phone calls the next day from codefendant Polanco warning Carela to "take my name out of your mouth" and threatening to "come over to where you are"; at one point, Nieves joined the call and told Carela that "[i]t was a good thing that that had happened to [Carela], for being a snitch." App'x 284, 288-90.

B. The Evidence at Trial

Trial began on April 14, 2021. The government's case-in-chief centered largely on the above testimony from Carela, along with general insight into the Trinitarios from expert witness Detective Paul Jeselson. Jeselson walked the jury through the Trinitarios’ written constitution, which lays out the group's "code of silence" and provides that "traitor[s]" who flout that rule will be "severely punished." App'x 630-32. Jeselson also discussed his general experience investigating "hits ... put out" by the Trinitarios, as well as "other violence," including "kidnappings, robberies, [and] shootings" by members of the group. App'x 626. This dovetailed with Carela's testimony concerning his direct participation in Trinitario missions that involved shootings, assaults, murder, and other crimes. Those themes resurfaced at closing, where the government contended that Carela, himself a "violent gang member," App'x 982, had been targeted by the defendants because he was a "snitch" – as "corroborated" by Jeselson's testimony regarding the "nature and organization and rules of the Trinitarios gang." App'x 986-90.

For his part, Nieves's defense consisted of brief testimony from two witnesses: a probation officer who spoke about Carela's post-incarceration association with Trinitarios members and continued cooperation with law enforcement, and a detective who had investigated Nieves's assault and could not recall Carela reporting any other assailants or subsequent threats. In closing, Nieves's counsel argued that Carela had lied about Nieves calling him a "rat and a snitch," and in so doing had "transformed a Bronx street fight into a federal case." App'x 1004-05.

C. Verdict and Sentence

Only two counts reached the jury. Prior to trial, the government abandoned Count Two (conspiracy to commit witness retaliation). After the government rested, the district court entered a judgment of acquittal on Count Three (witness tampering). Ultimately, the jury found Nieves guilty on Count One (witness retaliation), but acquitted both Nieves and Polanco on Count Four (conspiracy to commit witness tampering).

In July 2021, Nieves was sentenced to 36 months’ imprisonment to be followed by three years’ supervised release.

II. Jury Selection

The jury selection process at the heart of this appeal took place in the opening moments of trial proceedings.

A. The Parties’ Proposed Voir Dire Questions

Prior to trial, both sides proposed gang-related voir dire questions. The government suggested asking whether prospective jurors or their families had ever "been involved ... with a case involving a gang or other racketeering activity," and whether the fact that this case "involves racketeering activity, specifically, a gang" would affect their judgment. App'x 33. The defendants recommended asking, among other similar inquiries, whether jurors had any "particular interest" in "[s]treet gangs" or "street violence," or any "personal experiences or feelings arising from any acts of violence ... that would affect your impartiality in a case involving alleged gang violence." App'x 50, 52. The defendants also requested that the district court query whether any prospective jurors "ha[d] any negative feelings, stereotypes, or opinions about Latino Americans," and whether they believed that "Latino American immigrants are more likely to commit crimes than immigrants of [other] backgrounds," along with related questions about immigration. App'x 51.

The parties also suggested that the district court question jurors about a suite of other topics, including jurors’ feelings about law enforcement, their educational and employment backgrounds, what they like to read and watch, their families, and their hobbies. More generally, the defendants urged the district court to individually question each prospective juror in a manner that "explores specific concerns related to the circumstances of this case, and potential biases." App'x 43. A perfunctory individualized voir dire, they insisted, would be "insufficient to ensure the defendants an impartial jury and a fair trial." Id.

The district court instead opted for a far swifter approach than either side had advocated.

B. Voir Dire

At the outset, the basic format of voir dire was nothing out of the ordinary. The court seated 12 initial prospective jurors to be questioned as a group and directed the balance of the pool to "listen carefully to my questions, because some of those people may be excused and then you may be called up in their place and I don't want to have to repeat all of my questions." App'x 59-60. As prospective jurors were dismissed, the court confirmed that their replacements had heard its initial questions and asked whether those questions raised "[a]ny other issues you need to respond to." E.g. , App'x 68.

The court then presented a high-level overview of the charges, without referencing gangs:

The two defendants are named Christian Nieves and Elias Polanco. They have been charged with conspiring to threaten a government witness, named Miguel [Carela]. And also, Mr. Nieves has been charged with assaulting Mr. [Carela] in retaliation for Mr. [Carela's] testimony at a prior trial.

App'x 60. It next explained several foundational trial...