Case Number: 16‐2895
Judge: DEBRA ANN LIVINGSTON
Court: UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Plaintiff's Attorney: CARINA H. SCHOENBERGER, Michael S. Barnett
Grant C. Jaquith, United States Attorney
Defendant's Attorney: AMY ADELSON
Description: As relevant here, Baker was charged on November 5, 2015 in a single count
superseding indictment with conspiring to distribute and possess with intent to
distribute 100 grams or more of a mixture or substance containing heroin. The
evidence presented at his trial established that between January and mid‐June
2015, in Albany and Schenactady Counties, New York, Baker participated in this
conspiracy with Kandi Kennedy, who testified. Over the course of the
conspiracy, Kennedy sold heroin and also fentanyl to two confidential informants
(“CI1” and “CI2”) working for the United States Drug Enforcement
Administration (“DEA”) on five separate occasions; she attempted to sell heroin
in a sixth transaction that ended in the arrests of both Kennedy and Baker.
Kennedy testified that Baker, the father of her only child, was her supplier; that
Baker personally handed the drugs over to her at her house in Schenectady; and
that after each drug sale, she split the money proceeds with him, so that she kept
10% and Baker took the remaining 90%. The jury also heard evidence that the
CIs purchased drugs from Kennedy for $110 or $115 per gram.
1 The factual background presented here is derived from the testimony and other evidence presented at trial, and we view the evidence in the light most favorable to the government. See United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015).
Kennedy testified that Baker often accompanied her when she sold heroin
or fentanyl to CI1 and CI2. Four of the five completed transactions occurred in
the parking lot of a shopping plaza with retail stores including T.J. Maxx and
Target in Latham, New York (“Shopping Plaza”). When Baker accompanied her
on a transaction, Baker and Kennedy would drive together in the same car from
Kennedy’s house to the Shopping Plaza. The drive took approximately 20
minutes. Upon arrival, Baker would exit the car first and wait inside the T.J.
Maxx store. Meanwhile, Kennedy would meet CI1 and CI2 in the parking lot to
complete the drug sale. After the sale, which usually lasted only five to ten
minutes, Kennedy would meet Baker inside the T.J. Maxx before driving with him
back to Kennedy’s home.
In addition to Kennedy’s testimony, the government presented other direct
and circumstantial evidence of Baker’s involvement in the conspiracy, including
testimony from the two CIs and law enforcement agents, chemical forensic
analyses of the controlled substances, recorded telephone calls and text messages
between Kennedy and CI1 and also between Kennedy and Baker, and audio or
video recordings of the drug transactions. Some of this corroborating evidence
is described in more detail below.
I. The First Transaction
The first of the five completed drug transactions took place in January 2015.
CI1 testified that on January 27, he called Kennedy and arranged to meet the next
day so he could buy $500 worth of heroin from her. The next day, however,
Kennedy told CI1 that she did not have the heroin ready because she fell asleep
around 9:30 P.M. the night before, and missed a call from her supplier at
approximately 10:30.2 The only call that Kennedy received after 9:19 P.M. the
night before was a call at 10:14 P.M. from Baker’s number, which was forwarded
to Kennedy’s voicemail.
Although Kennedy was unable to supply the heroin on January 28, the
transaction took place the next day, January 29, when Kennedy met with CI1 at
approximately 12:00 P.M. or 1:00 P.M. and sold him 3.8 grams of a substance
2 In the recorded conversation, which was played for the jury, Kennedy said: “[T]hey were going drop them off last night and I fell asleep mad early I fell asleep around 9:30 and when they call at like 10:30 I was like dead . . . .” App. at 71–72, 353–54. Transcripts of this and the other recorded conversations were used as aids for the jury and are referenced herein, but jurors were properly instructed that the transcripts were not in evidence, and that the tape recordings themselves constituted the evidence.
II. The Second, Third, and Fourth Transactions
The next transactions followed a similar pattern and took place in February
and March 2015. In a video‐recorded transaction, for instance, CI1 and CI2 met
with Kennedy at the Shopping Plaza on February 16 and purchased 13.9 grams of
a substance containing heroin from her. CI1 then contacted Kennedy again on
February 24 at about 4:37 P.M. and asked her to call her supplier to check the price
CI1: [H]ave your people see what’s the best number they can do, cause after the next one it’s gonna be at least 100.
. . .
Kennedy: I can check into it, but you know.
CI1: Alright, just give ‘em a call real quick if they can do a little better. Hit me right back. App. 88–90, 363–64. Eight minutes later, at 4:45 P.M., Kennedy called CI1 back
to tell him that she was unable to reach her supplier: “I didn’t get an answer, but
. . . I’m sure that they’re going to call me back as soon as possible.” Id. at 90–91,
365–66. Kennedy’s phone records, introduced at trial, reflect only one phone call
during the eight‐minute period in between her calls with CI1 at 4:37 P.M. and 4:45
P.M.—Kennedy called Baker’s number at 4:39 P.M. About two weeks later, on
March 6, Kennedy met with CI1 and CI2 at about 1:15 P.M. in the Shopping Plaza
and sold them 26.2 grams of a substance containing heroin.
The next transaction was on March 26. Kennedy arrived at the Shopping
Plaza at approximately 1:30 P.M. in a car registered to Baker. There, she met with
CI1 and CI2 again and sold them 27.4 grams of a substance containing fentanyl.
Less than ten minutes after Kennedy completed the sale, a law enforcement agent
observed Baker and Kennedy exiting the T.J. Maxx together.
III. The Fifth Transaction
On May 11, 2015 at 11:06 A.M., CI1 called Kennedy again, this time seeking
to purchase 64 grams of heroin.3 They discussed meeting either later that day or
the next day. Kennedy then texted Baker: “Call my [sic] ASAP . . . Tia called . . .
Wants to see me ASAP.”4 App. 541. Baker called Kennedy back six minutes later
at 11:12 A.M. The jury heard a recording of this conversation, which was
intercepted pursuant to court‐ordered wiretap surveillance of Kennedy’s
telephone communications. During the conversation, Baker queried Kennedy as
3 In an earlier recorded conversation in April, Kennedy and CI1 had agreed to meet at the Shopping Plaza so that Kennedy could sell CI1 14 grams of heroin. CI1 cancelled this transaction, however, at the instruction of the DEA, when Kennedy informed CI1 that she would only be able to meet in the evening. 4 Kennedy testified that “Tia” was the name she used for her buyer.
to when “Tia” needed “it” and affirmed that he could “make it happen.” Id. at
176–79, 525–26. At 11:19 A.M., within a few minutes of this conversation,
Kennedy called CI1 again to confirm when CI1 would be available to meet to buy
heroin from her. CI1 explained that he was not available to meet that day.
The following Monday, May 18, CI1 and Kennedy connected by phone
again, and CI1 confirmed that he wanted to meet on Wednesday “in between like
12 and 1ish,” and that “the jacket is a size 56,” meaning that he now wished to
purchase 56 grams of heroin.5 Id. at 185, 530–31. Kennedy called CI1 the next
day at 6:25 P.M. to tell him that instead of 56 grams, she would only be able to sell
him 28 grams. The pair again used coded language, with Kennedy advising that
“I’m only going to be able to get the pants, not the . . . jacket too, not until Friday
at least,” to which CI1 responded, “The pants is just a 28?” App. 533.
Approximately two hours later, Baker called Kennedy and they had the following
conversation, which was again intercepted by wiretap:
BAKER: Yeah I’ll be able to do that.
KENNEDY: Oh, you will?
5 CI1 testified that in his conversations with Kennedy, they used code words like “kids not dressed” and “clothes” to refer to the proposed heroin transaction.
KENNEDY: Ok. Thank you that’s a good look cause I, I really needed, I needed that to happen.
KENNEDY: I appreciate it. So I’ll talk to you tomorrow about twelve, twelve thirty, ok?
KENNEDY: Alright. Id. at 187–88, 534–35. Five minutes after her conversation with Baker, Kennedy
texted CI1 saying, “I got the pants and jacket,” thus confirming that she would be
able to sell him the full amount of heroin requested—56 grams. Gov’t App. 64;
see also App. 113–14.
On Wednesday, May 20, Kennedy and CI1 were scheduled to meet at the
Shopping Plaza at approximately noon or 1 P.M. for the sale of 56 grams of heroin.
Baker called Kennedy at 12:41 P.M. and said, “Yeah I’m almost to you, I’ll be there
in like two minutes.” App. 536–37. Twenty minutes later, at 1:01 P.M., CI1
texted Kennedy to say, “I’m here r u by tj maxx” and Kennedy responded, “No.
Be there in 10.” Gov’t App. 66. When Kennedy arrived at the Shopping Plaza,
she was driving a car registered to Baker. Law enforcement agents observed
Baker exit that vehicle, and walk into T.J. Maxx. Kennedy then drove
approximately 25 or 30 yards away to a meeting place in the parking lot where she
sold 49.8 grams of a substance containing fentanyl to CI1 and CI2. After
completing the sale, Kennedy drove back towards T.J. Maxx, parked, and walked
into the same T.J. Maxx store that Baker had entered moments before.
IV. The Arrests
On Monday, June 15, 2015, Kennedy and CI1 agreed to meet the next day at
1:00 P.M. in the Shopping Plaza. Kennedy agreed to sell CI1 two ounces of heroin
on Tuesday and another two ounces on Thursday. On Tuesday, Kennedy and
Baker arrived at the Shopping Plaza in a car registered to Baker. Upon arrival,
Kennedy dropped Baker off at the T.J. Maxx. Kennedy then proceeded to her
meeting with CI1 and CI2, but she was arrested in the parking lot before she was
able to complete the sale.6 Baker was arrested soon after that, as he was exiting
the T.J. Maxx store.
V. The Trial and Jury Verdict
Trial commenced on December 15, 2015. Baker did not put on a defense
case. After deliberating for approximately three hours, the jury returned a guilty
verdict on December 18, 2015. In addition to determining that Baker participated
6 At the time of her arrest, Kennedy had in her possession 55.9 grams of a substance containing heroin.
in a conspiracy to distribute drugs, the jury also made a finding that it was
reasonably foreseeable to Baker that the conspiracy involved 100 grams or more
of heroin. The district court polled the jury and each juror confirmed the verdict.
VI. Post‐Trial Proceedings
By letter dated December 28, 2015, Baker moved pro se for a judgment of
acquittal pursuant to Rule 29 and for a new trial pursuant to Rule 33. Fed. R.
Crim. P. 29, 33. Then, about five weeks after the jury verdict, on January 25, 2016,
Juror No. 10 left a voicemail for Baker’s trial counsel, Arthur Frost. Juror No. 10
followed‐up with an email to Frost a few days later expressing “several concerns”
that “perhaps . . . will be helpful to you and your client.” Id. at 70–71. Among
other things, Juror No. 10 advised as follows:
The jury was instructed on several occasions to “keep an open mind” and not discuss the case among themselves until it received the case from the Court. This did not happen. There was discussion among many of the jurors during virtually every break. And after the verdict was rendered I overheard one juror say that he knew the defendant was guilty the first time he saw him (before he was sworn in as a juror). Id. at 70. Frost scheduled a meeting with Juror No. 10. On the day of the
scheduled meeting, however, Frost notified the district court that he planned to
meet with Juror No. 10 later that evening, and sought “further guidance from the
Court on how to proceed.” App. 556. The district court asked the parties to
brief the issue and Frost cancelled his meeting pending the district court’s decision
on his application for leave to obtain an affidavit from Juror No. 10 for presentation
to the district court.
On April 12, 2016, the district court denied Baker’s “application for
permission to inquire further of the jurors about whether the jury engaged in
premature deliberations, or if a juror lied during voir dire.“ Special App. 8–9.
The district court stated “[t]he proffered resulting testimony would be
inadmissible for purposes of challenging the validity of the verdict, see Fed. R.
Evid. 606(b), and any further inquiry in the manner suggested by Defendant
would be futile.” Id. On May 5, 2016, the district court denied Baker’s Rule 33
motion for a new trial and Rule 29 motion for a judgment of acquittal, concluding
inter alia that “[v]iewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the
crime of conviction proved beyond a reasonable doubt.” Id. at 14. Sentencing
was held on August 10, 2016. The district court imposed a term of imprisonment
of 180 months, to be followed by eight years of supervised release.
On appeal, Baker first argues that the evidence was insufficient as a matter
of law to support his conviction. Next, Baker argues that the district court erred
in denying his application to conduct post‐verdict juror interviews. We address
each argument in turn.
I. Sufficiency of the Evidence
We agree with the district court that the evidence presented at trial was
sufficient to show that Baker conspired to distribute more than 100 grams of
heroin. We review sufficiency of evidence challenges de novo, but defendants face
“a heavy burden, as the standard of review is exceedingly deferential.” Brock,
789 F.3d at 63 (citation omitted). “[W]e must view the evidence in the light most
favorable to the [g]overnment, crediting every inference that could have been
drawn in the [g]overnment’s favor, and deferring to the jury’s assessment of
witness credibility and its assessment of the weight of the evidence.” Id. (internal
quotation marks, brackets, and citation omitted). And “[w]e will sustain the
jury’s verdict if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Pierce, 785 F.3d 832, 838
(2d Cir. 2015) (citation omitted) (emphasis in original).
Baker’s sufficiency of evidence challenge is meritless. Kennedy testified
that she sold heroin several times in 2015; Baker was her supplier and he physically
handed heroin over to her at her house; Baker sometimes accompanied her when
she met CI1 and CI2 to sell them heroin; and Baker kept 90% of the proceeds from
all of her sales. Because a federal conviction “may be supported by the
uncorroborated testimony of even a single accomplice if that testimony is not
incredible on its face,” Kennedy’s testimony alone was sufficient to convict Baker.
United States v. Parker, 903 F.2d 91, 97 (2d Cir. 1990). Baker argues that Kennedy’s
“self‐serving testimony” was uncorroborated and should be rejected as “incredible
on its face” because she “received an extraordinarily cushy deal despite her
extensive criminal history, her prior drug dealing, and her lying to the police and
under oath.” Def.‐Appellant Br. 23–24. But this argument amounts to
challenging Kennedy’s “credibility based on [her] plea agreement with the
government and [her] long histor[y] of criminal and dishonest behavior,” and
“simply repeats facts and arguments already presented to the jury.” United States
v. Florez, 447 F.3d 145, 156 (2d Cir. 2006). During Kennedy’s cross‐examination,
Baker’s trial counsel focused almost exclusively on providing the jury with
examples of Kennedy’s dishonesty, noting inconsistencies in Kennedy’s
testimony, and explaining Kennedy’s incentives to testify untruthfully. Baker’s
trial counsel also used a significant portion of his closing statement to expound
upon how “Kennedy is a liar,” referring to Kennedy as “Kandi the liar.” See Dec.
18, 2015 Trial Tr. 547–54, 557–58, 560–61, United States v. Baker, No. 15‐cr‐258
(N.D.N.Y. Sept. 29, 2016), ECF No. 81. “We will not attempt to second‐guess a
jury’s credibility determination on a sufficiency challenge,” particularly when, as
is the case here, trial counsel already presented these same credibility arguments
to the jury. Florez, 447 F.3d at 156 (citations omitted).
Furthermore, even if corroborating evidence were necessary (and it is not),
there was in fact ample corroborating evidence here to support the potential
“inference[s] that the jury may have drawn in the government’s favor” on the basis
of Kennedy’s testimony alone. United States v. Hassan, 578 F.3d 108, 126 (2d Cir.
2008) (internal quotation marks omitted); see also Brock, 789 F.3d at 63 (“[W]e must
. . . credit every inference that could have been drawn in the [g]overnment’s
favor, and defer to the jury’s . . . assessment of the weight of the evidence.”
(citation omitted)). Thus, the jury could have concluded that the following
evidence supported Kennedy’s account of her dealings with Baker: Baker’s
presence in the vicinity of at least three drug transactions; the use of a car
registered to Baker in at least three transactions; the similar timing and location of
the other transactions; the suspicious timing of calls between Baker and Kennedy;
and the suggestive content of their communications. Such evidence, considered
as a whole, provided the jury with ample additional reason, beyond its
consideration of Kennedy’s testimony, to conclude that this testimony was
credible. See Brock, 789 F.3d at 63 (“[W]e must . . . defer to the jury’s assessment
of witness credibility.” (citation omitted)). Accordingly, we uphold the jury’s
verdict because a “rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Pierce, 785 F.3d at 838.
II. Post‐Trial Juror Interviews
We also uphold the district court’s decision to deny Baker’s request to
interview jurors approximately five weeks after the jury verdict. We review a
trial judge’s handling of alleged jury misconduct for abuse of discretion. United
States v. Sabhnani, 599 F.3d 215, 250 (2d Cir. 2010). As we have repeatedly said, a
post‐verdict inquiry into allegations of such misconduct is only required “when
there is clear, strong, substantial and incontrovertible evidence . . . that a specific,
nonspeculative impropriety has occurred which could have prejudiced the trial of
a defendant.” United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983) (citation
omitted); see also United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989).
Allegations of impropriety must be “concrete allegations of inappropriate conduct
that constitute competent and relevant evidence,” though they need not be
“irrebuttable [because] if the allegations were conclusive, there would be no need
for a hearing.” Ianniello, 866 F.2d at 543. “It is up to the trial judge to determine
the effect of potentially prejudicial occurrences,” United States v. Vitale, 459 F.3d
190, 197 (2d Cir. 2006) (citation omitted), and the “trial judge has broad flexibility
in responding to allegations of [juror] misconduct, particularly when the incidents
relate to statements made by the jurors themselves, rather than to outside
influences,” Sabhnani, 599 F.3d at 250 (internal quotation marks omitted).
Here, the district court properly proceeded with caution when determining
whether to permit juror interviews. Baker argues that a post‐trial inquiry was
required based on two allegations in Juror No. 10’s page‐and‐a‐half long email:
Allegation No. 1: “The jury was instructed on several occasions to ‘keep an open mind’ and not discuss the case among themselves until it received the case from the Court. This did not happen. There was discussion among many of the jurors during virtually every break.” Gov’t App. 70; see also Def.‐Appellant Br. 31. Allegation No. 2: “[A]fter the verdict was rendered I overheard one juror say that he knew the defendant was guilty the first time he saw him (before he was sworn in as a juror).” Gov’t App. 70; see also Def.Appellant Br. 31.
Baker argues that the first allegation shows that the jurors impermissibly engaged
in premature deliberations, perhaps “involv[ing] the introduction of truly
extraneous materials into the juror process,” Def.‐Appellant Br. 37, and that the
second demonstrates that a juror could have been “convinced from the outset of
Baker’s guilt based on racial stereotypes or animus,” id. at 36. For the following
reasons, we are not persuaded.
At the start, both of these allegations relate to “statements made by the
jurors themselves, rather than to outside influences,” and, as noted above, we have
made clear that trial judges have particularly “broad flexibility in responding to
allegations of such misconduct.” Sabhnani, 599 F.3d at 250 (internal quotation
marks omitted). Moreover, the brief email excerpts on which Baker relies are not
even a prominent feature of Juror No. 10’s lengthy email communication, which
makes numerous observations about the trial, ranging over many topics, but at no
point suggests that the jury reached the wrong verdict or that Juror No. 10 was in
any way influenced by either premature deliberations or juror bias.7 Because
7 In fact, Juror No. 10 references specific evidence in the form of an intercepted telephone call between Baker and Kennedy in explaining his vote to convict: “It came down to two sentences attributed to Mr. Baker in the last call we heard between he and Ms. Kennedy: ‘I got the stuff. I can make it happen.’ That didn’t leave wiggle room.” Gov’t App. 71.
courts are wary of the “evil consequences” likely to result from post‐verdict
inquiries—“subjecting juries to harassment, inhibiting juryroom deliberation,
burdening courts with meritless applications, increasing temptation for jury
tampering and creating uncertainty in jury verdicts”—such inquiries are not
undertaken in the absence of reasonable grounds. Ianniello, 866 F.2d at 543; see
also Moon, 718 F.2d at 1234 (requiring “clear, strong, substantial and
incontrovertible evidence that a specific non‐speculative impropriety has occurred”
(emphasis added)); United States v. Moten, 582 F.2d 654, 667 (2d Cir. 1978) (noting
“unexceptional proposition” that convicted defendants “should not be allowed to
. . . inconvenience jurors merely to conduct a fishing expedition”). We cannot
conclude that the district court abused its discretion in determining that Juror No.
10’s email did not present sufficient reason for further inquiry and additional
contact with jurors.
Thus, regarding the first excerpt on which Baker relies, Juror No. 10 avers
that the jurors failed to follow the district court’s instruction to “keep an open
mind and not discuss the case among themselves” because “[t]here was discussion
among many of the jurors during virtually every break.” App. 70. However,
Juror No. 10 says nothing about the content of those discussions. Baker surmises
that the conversations amounted to premature deliberations, but “[n]ot every
comment a juror may make to another juror about the case is a discussion about a
defendant’s guilt or innocence that comes within a common sense definition of
deliberation.” United States v. Peterson, 385 F.3d 127, 135 (2d Cir. 2004); see also
United States v. Morales, 655 F.3d 608, 629, 632 (7th Cir. 2011) (post‐verdict juror
note alleging some jurors violated the district court’s instruction not to discuss the
case among themselves prior to deliberations “only suggested the possibility of
premature deliberations (as opposed to jokes, idle comments, or other generalized
discussions)”); Sabhnani, 599 F.3d at 249 (affirming denial of post‐verdict interview
because a “potentially out‐of‐context, single word comment, does not demonstrate
that the jurors prematurely deliberated and does not demonstrate that the juror
would be unreceptive to opposing arguments or that any juror failed to participate
in deliberations in good faith” (internal quotation marks and brackets omitted)).8
Moreover, even assuming, arguendo, that premature deliberations occurred, we
agree with the district court that Rule 606(b) of the Federal Rules of Evidence
prohibited the jurors from impeaching their verdict by testifying about the effect
8 See also United States v. Annabi, 560 F. App’x 69, 73–74 (2d Cir. 2014) (summary order) (affirming denial of post‐verdict interview where one juror wrote a letter disclosing that jurors spoke about the case during lunch).
of such deliberations on the verdict, rendering the inquiry futile from the start.9
See United States v. Leung, 796 F.3d 1032, 1036 (9th Cir. 2015) (concluding that Rule
606(b) prohibits post‐trial inquiry of jurors into effect of premature deliberations
because such an inquiry “intrudes upon jurors’ mental processes concerning the
verdict” and “how jurors considered the evidence or their mental states while
hearing testimony” (internal quotation marks omitted)); Morales, 655 F.3d at 631
(concluding that “[a]ny [post‐verdict] inquiry as to bias arising from the alleged
premature deliberations would run afoul of [Rule 606(b)’s] clear proscription” and
would thus be “fruitless” (internal quotation marks omitted)); cf. United States v.
Richards, 241 F.3d 335, 343 (3rd Cir. 2001) (finding no abuse of discretion in denying
9 The no‐impeachment rule and its exceptions are codified as Rule 606(b) of the Federal Rules of Evidence: (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form. Fed. R. Evid. 606(b).
motion for a new trial based on juror’s post‐trial affidavit attesting that he
“overheard two jurors comment in the presence of other jurors and prior to the
close of the evidence that they believed [the defendant] was guilty” because
inquiry into “whether or not the premature statements affected their verdict”
would be prohibited by Rule 606(b)).
Baker attempts to avoid this conclusion by speculating that discussion
among jurors during trial could have involved “the introduction of truly
extraneous materials into the juror process.” Def.‐Appellant Br. 37 (referencing
an exception to the general no‐impeachment rule set out in Federal Rule of
Evidence 606(b)(2)(A)). But he provides no basis for the conclusion that
extraneous materials were introduced to the jury. And we have rejected
speculative claims of this sort as insufficient on many past occasions. See, e.g.,
King v. United States, 576 F.2d 432, 438 (2d Cir. 1978) (concluding that an
evidentiary hearing was not required because “weakly authenticated, vague, and
speculative material” constituted a “frail and ambiguous showing”).10
10 See also United States v. Cartelli, 272 F. App’x 66, 69–70 (2d Cir. 2008) (summary order) (affirming district court’s decision not to inquire further because “the court was presented with mere speculation as to what sort of conversations the jurors may have had with their wives”).
Along the same lines, Baker speculates that Juror No. 10’s second allegation,
that an unnamed juror stated after the verdict that he “knew the defendant was
guilty the first time he saw him (before he was sworn in as a juror),” could possibly
indicate that the juror determined Baker’s guilt “based on racial stereotypes or
animus,” Def.‐Appellant Br. 36, given that “[Baker] appeared non‐white,” Def.
Appellant Reply Br. 18. He seeks to invoke the Supreme Court’s recent decision
in Peña‐Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017), which recognized that when
a juror “makes a clear statement that indicates that he or she relied on racial
stereotypes or animus to convict a criminal defendant, the Sixth Amendment
requires that the no‐impeachment rule give way in order to permit the trial court
to consider the evidence of the juror’s statement and any resulting denial of the
jury trial guarantee.” But Baker’s invocation of Peña‐Rodriguez is to no avail.11
First, Peña‐Rodriguez, by its terms, is inapposite. Peña‐Rodriguez recognized
a narrow exception to the no‐impeachment rule: When a juror has made a “clear
statement that indicates he or she relied on racial stereotypes or animus to convict
11 Baker did not argue below that Juror No. 10’s email suggested that racial bias motivated the verdict and the government contends that we should review this claim only for plain error. We need not address the point, however, as we conclude that affirmance is appropriate under either potentially applicable standard of review.
a criminal defendant”—that is, a statement “exhibiting overt racial bias that cast[s]
serious doubt on the fairness and impartiality of the jury’s deliberations and
resulting verdict”—a trial court may consider evidence of that juror’s statement,
even when proffered by other jurors. Id. (emphases added); see also id. (noting
that “[n]ot every offhand comment indicating racial bias or hostility will justify
setting aside the no‐impeachment bar to allow further judicial inquiry”); Young v.
Davis, 860 F.3d 318, 333 (5th Cir. 2017), cert. denied, 138 S. Ct. 656 (2018) (describing
Peña‐Rodriguez exception as a “constrained relaxing” that only applies
“narrowly”); United States v. Robinson, 872 F.3d 760, 764 (6th Cir. 2017) (describing
Peña‐Rodriguez exception as applicable only “in very limited circumstances”).
Peña‐Rodriguez thus sets forth a limited circumstance in which the Constitution
requires an exception to the rule that jurors will not be heard to impeach their own
verdicts. But Peña‐Rodriguez does not address the separate question of what
showing must be made before counsel is permitted to interview jurors post‐verdict
to inquire into potential misconduct. Indeed, as to this question, the decision
simply reaffirms the importance of limits on counsel’s post‐trial contact with jurors
“to provide [them] some protection when they return to their daily affairs after the
verdict has been entered.” Peña‐Rodriguez, 137 S. Ct. at 869; see also id. at 865
(“[T]he no‐impeachment rule has substantial merit [because i]t . . . provid[es]
jurors with considerable assurance that after being discharged they will not be
summoned to recount their deliberations, and they will not otherwise be harassed
or annoyed by litigants seeking to challenge the verdict”).
Next, Juror No. 10’s allegation that an unnamed juror said, “he knew the
defendant was guilty the first time he saw him,” without more, does not constitute
clear, strong, and incontrovertible evidence that this juror was animated by racial
bias or hostility, providing reasonable grounds for further inquiry. Crediting
Baker’s speculative conclusion to the contrary would run counter to our
presumption that “jurors remain true to their oath and conscientiously observe the
instructions and admonitions of the court.” United States v. Rosario, 111 F.3d 293,
300 (2d Cir. 1997) (citation omitted). Here, after administering the oath to jurors,
the district court specifically instructed the jury to “decide the case based on what
you hear and see in the courtroom,” to “keep an open mind until you have heard
all the evidence in this case and the [c]ourt’s charge on the law,” and to remember
that “[t]he defendant . . . starts out the trial with a clean slate.” Dec. 15, 2015 Trial
Tr. at 13–17, United States v. Baker, No. 15‐cr‐258 (N.D.N.Y. Sept. 29, 2016), ECF No.
78. As Peña‐Rodriguez itself made clear, such instructions help ensure that the
exception to the no‐impeachment rule that it recognized would be “limited to rare
cases.” 137 S. Ct. at 871. Baker has not come close to showing that his case falls
within this category.
Finally, we observe that Baker’s trial counsel properly notified the district
court and the government prior to inquiring further of Juror No. 10. “[I]t always
lies within the province of the district court to take full control of the [post‐verdict
interviewing of jurors] when it is first brought to his attention.” Moten, 582 F.2d
at 666. The district court exercised “sound discretion” in determining that
further inquiry was unnecessary. It thus did not err in denying Baker’s request
to interview jurors. Juror No. 10’s email did not provide sufficient evidence to
trigger mandatory post‐trial juror interviews because Juror No. 10’s email did not
constitute “clear, strong, substantial and incontrovertible evidence that a specific,
non‐speculative impropriety ha[d] occurred.” Ianniello, 866 F.2d at 543.
Outcome: We have considered all of Baker’s remaining arguments and find them to be
meritless. For the foregoing reasons, Baker’s judgment of conviction is AFFIRMED.