United States v. Moran-Toala

12-2010-cr
United States v. Moran-Toala
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2012 3
(Argued: June 20, 2013 Decided: August 12, 2013) 4
Docket No. 12-2010-cr 5
------------------------------------- 6
UNITED STATES OF AMERICA, 7
Appellee, 8
- v - 9
ELIZABETH MORAN-TOALA, 10
Defendant-Appellant. 11
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Before: CALABRESI, CABRANES, and SACK, Circuit Judges. 13
Appeal from a May 10, 2012 judgment of the United 14
States District Court for the Eastern District of New York 15
(Frederic Block, Judge), after a jury trial, convicting 16
Elizabeth Moran-Toala of conspiracy to exceed authorized 17
access to a government computer in furtherance of a 18
narcotics conspiracy in violation of 18 U.S.C. §§ 371 and 19
1030(c)(2)(B)(ii). The jury acquitted her of narcotics 20
conspiracy charges, however, after the district court 21
instructed the jury in effect that it was permitted to 22
return inconsistent verdicts. We conclude that this 23

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instruction was erroneous and that the error was not 1
harmless. 2
Vacated and remanded. 3
PATRICIA E. NOTOPOULOS (Jo Ann M. 4
Navickas, on the brief), Assistant 5
United States Attorneys, for Loretta 6
E. Lynch, United States Attorney for 7
the Eastern District of New York, 8
Brooklyn, NY, for Appellee. 9
FLORIAN MIEDEL, Law Office of 10
Florian Miedel, New York, NY, for 11
Defendant-Appellant. 12
SACK, Circuit Judge: 13
Although juries are supposed to render verdicts 14
that are consistent with one another, from time to time they 15
do not. When this happens, it is well established that a 16
criminal defendant cannot exploit any such inconsistency in 17
the jury's verdicts to secure a new trial. This appeal 18
presents not a direct challenge to inconsistent verdicts, 19
but instead a related question: whether the district court 20
erred when it instructed the jury in effect that it was 21
permissible to render inconsistent verdicts, and whether, in 22
light of that instruction, the jury verdicts and judgment 23
based thereon can stand. 1
24
1 The government concedes (and we agree) that in light
of the fact that the jury acquitted the defendant of one of
the conspiracy charges, no matter how that acquittal was
affected by the court's supplemental instruction, the
judgment of acquittal on that charge cannot be appealed
2

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BACKGROUND 1
From February 2003 to October 2007, Defendant 2
Moran-Toala was employed as a Federal Customs and Border 3
Patrol ("CBP") officer at Hollywood International Airport in 4
Fort Lauderdale, Florida. She worked in a "Passenger 5
Analytical Unit," which required her to review flight 6
manifests to identify airline passengers who were suspected 7
of involvement in criminal activity. In order to do so, 8
Moran-Toala cross-checked names in a database known as the 9
Treasury Enforcement Communications System ("TECS"), which 10
collects information from thousands of databases, including 11
those containing flight and travel information, border 12
crossings, reports of seizures of contraband, criminal 13
history information, outstanding warrants, and motor vehicle 14
records. CBP officers are prohibited from "browsing" the 15
TECS database for personal reasons or for information 16
otherwise unrelated to official business, and they must 17
complete various privacy awareness training courses in order 18
to understand these obligations. 19
because, under protections afforded to the defendant by the
Double Jeopardy Clause of the Fifth Amendment, the charge
could not in any event be pursued by the government on
remand. See U.S. CONST. amd. V.
3

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The Eastern District of New York Conspiracy 1
In 2005, Immigration and Customs Enforcement 2
agents began investigating a suspected narcotics conspiracy 3
involving Jorge Espinal, a Delta Airlines baggage handler at 4
New York's John F. Kennedy Airport. Law enforcement agents 5
obtained a judicially-authorized wiretap on Espinal's phone, 6
which disclosed that Espinal was working with a New York- 7
based narcotics distributor named Henry Polanco. Espinal 8
told Polanco that because he was a luggage-ramp supervisor, 9
he could intercept shipments of narcotics from Delta planes 10
arriving at the airport, and that such shipments would not 11
be screened on arrival by CBP agents. Polanco arranged for 12
a supplier in the Dominican Republic to hide packages 13
containing cocaine, heroin, and ecstasy on many Delta 14
flights that traveled directly from Santiago, in the 15
Dominican Republic, to New York. CBP agents ultimately 16
seized six of Polanco and Espinal's shipments, two of which 17
are pertinent to Moran-Toala's case. 18
First, Espinal and Polanco arranged for a backpack 19
containing heroin and cocaine to be stashed on a February 20
11, 2006 Delta flight from the Dominican Republic to New 21
York. CBP agents seized the backpack before Espinal could 22
retrieve it. Espinal did not immediately realize that the 23
shipment had been intercepted. He told Polanco, wrongly as 24
4

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it turned out, that the bag had been placed on the 1
international baggage carousel, and then in unclaimed 2
baggage, but that he, Espinal, was trying to get it back. 3
The Dominican supplier became concerned about 4
Espinal's failure to retrieve the backpack, suspecting that 5
Espinal and Polanco had stolen the drugs. The supplier 6
demanded that Espinal and Polanco return the shipment or pay 7
him for the loss. To prove to the Dominican supplier that 8
they had not stolen the drugs, Espinal said that "his 9
girlfriend worked for the government and that she had access 10
to [seizure of contraband] information," so "he was going to 11
tell her to get the information of the seizure to prove 12
. . . that the seizure was real." Trial Transcript ("Trial 13
Tr.") at 248:17-249:5; Joint App'x at 329-30. On February 14
14, 2006, three days after the shipment went missing, Moran- 15
Toala used TECS to access the seizure report for the 16
backpack in question. 17
Second, as a result of a wiretap, law enforcement 18
agents knew that Espinal and Polanco had arranged for a 19
"mule" 2 named Henry Cabrera to carry a suitcase containing 20
narcotics on an August 24, 2007 Delta flight from the 21
2 "In the quaint jargon of the narcotic trade,
individuals who smuggle narcotics on their persons are known
as 'mules.'" United States v. Vivero, 413 F.2d 971, 972 n.1
(2d Cir. 1969) (per curiam).
5

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Dominican Republic to JFK Airport. The agents planned to 1
arrest Cabrera as he exited the plane. While they were 2
waiting for the flight to arrive, they saw Espinal attempt 3
to enter a sterile area, apparently to meet Cabrera and take 4
the suitcase before Cabrera reached customs screening. 5
Espinal reported to Polanco that the heavy law enforcement 6
presence prevented him from meeting Cabrera and that he did 7
not know what happened to the suitcase, but Polanco 8
suspected that Espinal had stolen the drugs. Again, Espinal 9
said that he would contact his girlfriend to confirm that 10
Cabrera had been arrested as he deplaned, as proof that the 11
drugs were seized by law enforcement, and not stolen. 12
On August 29, 2007, Moran-Toala again used TECS to 13
access Cabrera's arrest report. According to her telephone 14
records, on the morning of August 30, 2007, Moran-Toala 15
placed a telephone call to the phone located at Espinal's 16
work station at JFK Airport. 17
In addition, Espinal had an associate named Victor 18
Perez who smuggled money to the Dominican Republic at 19
Espinal's behest. Perez was planning to fly to the 20
Dominican Republic for that purpose, but was afraid that 21
there might be an unrelated outstanding warrant for his 22
arrest issued as a result of his failure to pay child 23
support, which might pose a problem for him during reentry 24
6

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into the United States. On or about August 29, 2007, 1
Espinal told Perez that he had a "lady friend" who could 2
check to see whether Perez had any outstanding warrants. 3
Trial Tr. at 486:18; Joint App'x at 566. Perez gave Espinal 4
his date of birth and social security number. On September 5
1, 2007, Moran-Toala conducted a TECS search using Perez's 6
personal information. The search did not unearth any 7
outstanding warrants or criminal history information. 8
Moran-Toala's phone records reflect two outgoing calls to 9
Espinal on that day. A few days later, Espinal told Perez 10
that it was safe for him to travel. 11
Moran-Toala was indicted in the United States 12
District Court for the Eastern District of New York on 13
February 19, 2008, in connection with these events. In a 14
superseding indictment filed on April 2, 2009, she was 15
charged, in Count One, with conspiracy to import more than 16
one kilogram of heroin and more than five kilograms of 17
cocaine, in violation of 21 U.S.C. §§ 960, 963; and, in 18
Count Two, with conspiracy to use a government computer 19
unlawfully, in violation of 18 U.S.C. §§ 1030(a)(2)(B), 20
1030(c)(2)(B)(ii). Unlawful use of a computer is a 21
misdemeanor offense, but is subject to a felony enhancement 22
if "the offense was committed in furtherance of any criminal 23
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or tortious act in violation of the Constitution or laws of 1
the United States." 18 U.S.C. § 1030(c)(2)(B)(ii). 2
The Southern District of Florida Conspiracy 3
While the New York conspiracy case was pending, 4
Moran-Toala was indicted in the Southern District of Florida 5
for her alleged involvement in a separate heroin importation 6
and distribution conspiracy with her sister and brother-in- 7
law, officers of the CBP and Transportation Security 8
Administration, respectively. On April 16, 2010, she 9
pleaded guilty to the Florida narcotics conspiracy charges. 10
In her signed, written plea allocution, Moran-Toala admitted 11
that she used the TECS system to run travel checks for drug 12
couriers flying out of Fort Lauderdale to help ensure safe 13
delivery of the drugs. She also admitted that when a 14
shipment of narcotics was seized in April 2007, she used 15
TECS to access the seizure report to prove to her supplier 16
that the product was seized and not stolen. Moran-Toala was 17
sentenced to a term of 120 months' imprisonment for the 18
Florida conspiracy. 19
Trial in the Eastern District of New York 20
Back in the Eastern District of New York, on June 21
21, 2011, Moran-Toala proceeded to trial before a jury on 22
both counts of the superseding indictment. She admitted to 23
misusing her CBP computer, but asserted that she did so with 24
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no knowledge of Espinal and Polanco's criminal purpose, let 1
alone any intent to further it. 2
Rule 404(b) Evidence 3
During trial, the government moved under Rule 4
404(b) of the Federal Rules of Evidence to admit Moran- 5
Toala's Florida plea allocution as evidence of her knowledge 6
of the New York narcotics conspiracy. Although the defense 7
conceded that the plea allocution fell within the ambit of 8
Rule 404(b), it objected to the admission of this evidence 9
on Rule 403 3 prejudice grounds. The district court 10
initially hesitated, noting that if the plea allocution came 11
in, "[i]t wouldn't take more than ten seconds [for the jury] 12
to find her guilty." Trial Tr. at 293:9-10; Joint App'x at 13
374. Ultimately, however, the district court decided to 14
allow the evidence to be admitted, noting that "knowledge 15
and scheme and intent [are] very much at play." Trial Tr. 16
at 515:24; Joint App'x at 595. Over the defense's objection 17
3 Federal Rule of Evidence 403 provides: "The court
may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence." (emphasis
added).
9

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and after heavy editing by the court, the government was 1
allowed to present the following stipulation to the jury: 2
[I]t is agreed among the parties that as 3
part of the statement under oath during a 4
guilty plea in a different case on April 5
16th, 2010, before the Honorable James I. 6
Cohen, United States District Judge, 7
Southern District of Florida, the 8
defendant admitted the following. 9
In furtherance of a drug conspiracy that 10
began in approximately June 2006, between 11
herself, her sister Cindy Moran, and a 12
third individual, [a defendant in the 13
Florida case,] Elizabeth Moran-Toala 14
misused her work computer and ran the 15
names of people she knew entering the 16
United States from the Dominican Republic 17
carrying narcotics. Elizabeth Moran- 18
Toala scrolled down the manifest in order 19
to avoid detection, rather than simply 20
entering the courier's name. 21
[T]he purpose of those inquiries [was] to 22
ensure the couriers . . . would not 23
encounter[] any difficult[ies] at 24
Customs[.] [F]or her part in this 25
conspiracy, Elizabeth Moran-Toala was 26
paid $10,000. 27
Trial Tr. at 534:13-535:4; Joint App'x at 614-15. When the 28
prosecutor had finished reading the stipulation into the 29
record, the district court immediately gave the jury a 30
strongly worded limiting instruction, emphasizing that they 31
could consider the stipulation only for the purpose of 32
determining whether Moran-Toala knew that she was misusing 33
the computer to further a crime -- the narcotics conspiracy 34
10

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-- and not as evidence that she has a "propensity to commit 1
crimes." Trial Tr. at 535:16; Joint App'x at 615. 2
The Jury Charge and Verdict Sheet 3
In its charge as to the law with respect to the 4
felony enhancement for the unlawful computer use conspiracy, 5
the district court instructed the jury: 6
If you determine, in respect to count two 7
[conspiracy to exceed authorized computer 8
access], that the defendant is guilty of 9
that count, you must determine whether 10
the government has proved beyond a 11
reasonable doubt that Section 12
[1030(a)(2)(B)(ii)] -- that the offense 13
in that section was committed in 14
furtherance of a criminal act in 15
violation of the Constitution and laws of 16
the United States; namely, the conspiracy 17
to import narcotics as charged in count 18
one. It's linked to count one if you 19
find she is guilty. 20
The phrase in furtherance means with the 21
intent to help, advance, move forward, 22
promote or facilitate. The government 23
must therefore show that the defendant 24
engaged in the conduct of accessing the 25
United States Department of Homeland 26
Security computer in excess of 27
authorization, with the intent to 28
advance, move forward, promote or 29
facilitate the conspiracy charged in 30
count [one] about which I've already 31
instructed you. 32
Trial Tr. at 665:10-25; Joint App'x at 745. Neither party 33
objected to this instruction. 34
The district court provided the jury with a 35
verdict sheet containing various questions. Question 1 36
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asked the jury to report its verdict on Count One, the 1
narcotics conspiracy count. Question 2 asked the jury to 2
find the amounts of heroin and cocaine involved in the 3
narcotics conspiracy, if any. Question 3 asked the jury to 4
report its verdict on Count Two, for conspiracy to exceed 5
authorized computer access. Question 4 asked, "Was the 6
[unlawful computer use] conspiracy in furtherance of the 7
crime charged in Count One, namely, the conspiracy to import 8
a controlled substance?" If the jury answered Question 4 9
affirmatively, Moran-Toala would be subject to a felony 10
enhancement on Count Two, for conspiring to unlawfully use a 11
computer. 12
Jury Deliberations 13
At approximately 4:15 p.m. on June 28, 2011, the 14
first full day of deliberations, the jury sent back a note 15
asking "Count 2: must the verdict in #4 be in agreement with 16
Count #1?" Jury Note, June 28, 2011; Joint App'x at 799. 17
In other words, the jury was asking whether the findings on 18
which it based its response to Question 4 on the verdict 19
sheet (i.e., did Moran-Toala participate in a conspiracy to 20
unlawfully use a computer in furtherance of the crime 21
charged in Count One, conspiracy to import a controlled 22
substance) had to be consistent with its verdict on Count 23
One itself. The district court shared the contents of the 24
12

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note with counsel and solicited their respective views. The 1
government argued that the answer should be "no." In the 2
government's view, Moran-Toala could have intended to exceed 3
her authorized computer access in furtherance of the 4
narcotics conspiracy without agreeing to join it or without 5
having enough knowledge of the narcotics conspiracy to be 6
deemed a member. Defense counsel urged the district court 7
to answer the jury's question affirmatively, foreclosing any 8
possibility of inconsistent verdicts. 9
Although the district court's "gut feeling" was to 10
agree with the defense that the verdicts must be consistent, 11
Trial Tr. at 697:20; Joint App'x at 777, the court 12
ultimately told the jury that its verdict on the narcotics 13
conspiracy and the felony enhancement did not have to be "in 14
agreement," Trial Tr. at 700:3-4; Joint App'x at 780. The 15
court explained its change of heart as a reluctance "to 16
charge the government out of court." Trial Tr. at 700:16- 17
17; Joint App'x at 780. 18
Approximately twenty minutes after the district 19
court responded to the jury's note, at 5:02 p.m., the jury 20
returned its verdict. Consistent with the district court's 21
supplemental instruction, the jury acquitted Moran-Toala of 22
the narcotics conspiracy, but convicted her of conspiring to 23
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unlawfully access a computer in furtherance of the same 1
narcotics conspiracy. 2
Rule 33 Motion 3
Following trial, Moran-Toala moved to set aside 4
the jury's findings with respect to the felony enhancement 5
pursuant to Rule 33 of the Federal Rules of Criminal 6
Procedure. In a memorandum and order dated March 8, 2012, 7
the district court denied Moran-Toala's Rule 33 motion. The 8
court began by noting: 9
While there may be scenarios in which an 10
individual can act in furtherance of a 11
conspiracy without joining the 12
conspiracy, there is no view of the 13
evidence in this particular case that 14
would permit that conclusion. The 15
government's theory at trial was that 16
Moran–Toala would, at a co-conspirator's 17
request, periodically access confidential 18
information regarding narcotics seizures 19
and other information and pass it on to 20
the coconspirator. . . . By finding that 21
Moran–Toala committed the conspiracy 22
computer offense "in furtherance of the 23
crime charged in Count one," the jury 24
necessarily determined that she had 25
agreed with another -- her co-conspirator 26
on the computer charge -- to commit the 27
crime; that she had intentionally 28
advanced the narcotics conspiracy; and 29
that she had committed an overt act in 30
furtherance of the conspiracy. Put 31
simply, Moran–Toala could not have 32
intentionally misused her computer to 33
advance a narcotics conspiracy without 34
being a member of that conspiracy. Thus, 35
when the jury asked whether the special 36
verdict on the [felony] enhancement 37
needed to be "in agreement" with its 38
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verdict on count one, it was effectively 1
asking whether the verdict had to be 2
consistent. 3
United States v. Moran-Toala, No. 08 Cr. 103, 2012 WL 4
748612, at *3, 2012 U.S. Dist. LEXIS 30893, at *7-*8 5
(E.D.N.Y. Mar. 8, 2012) (footnote omitted). Nevertheless, 6
the district court rejected the Rule 33 motion because "even 7
assuming that the Court erroneously sanctioned an 8
inconsistent verdict, that error would not alter the general 9
rule that such verdicts are unreviewable." Id., 2012 WL 10
748612, at *4, 2012 U.S. Dist. LEXIS 30893, at *9. 11
On May 4, 2012, the district court sentenced 12
Moran-Toala, principally, to a term of 12 months' 13
imprisonment, to run concurrently with the 10-year sentence 14
she is serving for the Florida narcotics conspiracy 15
conviction. Moran-Toala now challenges the supplemental 16
instruction regarding the jury's power to render 17
inconsistent verdicts, as well as the admission of the 18
Florida plea allocution, seeking a new trial on the unlawful 19
computer access conspiracy charge. 20
DISCUSSION 21
We note at the outset that because the jury, 22
rightly or wrongly, consistently or inconsistently, 23
acquitted the defendant on Count One, the narcotics 24
conspiracy count, the Double Jeopardy Clause bars any 25
15

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retrial of the defendant for that offense. See Evans v. 1
Michigan, -- U.S. --, 133 S. Ct. 1069, 1074 (2013) ("It has 2
been half a century since we first recognized that the 3
Double Jeopardy Clause bars retrial following a court- 4
decreed acquittal . . . ."). This appeal is therefore 5
limited to the defendant's conviction on Count Two: the 6
misdemeanor conspiracy to exceed authorized computer access 7
count, and its accompanying felony enhancement, which 8
applies only if the unlawful computer-use conspiracy was 9
committed in furtherance of the narcotics conspiracy charged 10
in Count One. 11
I. The Supplemental Jury Instruction 12
As we previously noted, whether the jury rendered 13
inconsistent verdicts is not, in and of itself, the basis 14
for this appeal. On the face of it, it does seem hopeless 15
to try to reconcile the jury's acquittal as to the 16
defendant's participation in the Espinal-Polanco narcotics 17
conspiracy charged in Count One with the jury's conviction 18
as to Count Two, the defendant's participation in a 19
conspiracy to access TECS with the intent to further the 20
Espinal-Polanco narcotics conspiracy. 4 But Moran-Toala does 21
4 By ultimately convicting Moran-Toala of the unlawful
computer access conspiracy, the jury determined that: she
agreed with Espinal to gain access to TECS, she committed an
overt act in furtherance of the conspiracy, and she did so
16

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not directly challenge, nor could we review, the verdict for 1
inconsistency. It has long been the law that "[c]onsistency 2
in the verdict is not necessary." Dunn v. United States, 3
284 U.S. 390, 393 (1932). "[T]he jury, though presumed to 4
follow the instructions of the trial court, may make its 5
ultimate decisions 'for impermissible reasons,' such as 6
'mistake, compromise, or lenity.'" United States v. Acosta, 7
17 F.3d 538, 545 (2d Cir. 1994) (quoting United States v. 8
Powell, 469 U.S. 57, 63, 65 (1984)). Inconsistent verdicts 9
are unreviewable on appeal, even though "'error,' in the 10
sense that the jury has not followed the court's 11
instructions, most certainly has occurred," because "the 12
possibility that the inconsistent verdicts may favor the 13
criminal defendant as well as the Government militates 14
against review of such convictions at the defendant's 15
behest." Powell, 469 U.S. at 65. 16
But it does not follow from judicial inability to 17
disturb inconsistent verdicts after the fact that the 18
district court may sanction potentially inconsistent 19
verdicts ex ante. It is on that basis that Moran-Toala 20
with the intent to advance the narcotics conspiracy. It is
difficult to see how these findings would not compel the
jury also to find that Moran-Toala agreed with Espinal to
import narcotics and that she misused used her CBP computer
to further that narcotics conspiracy.
17

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challenges the supplemental jury instruction: the court's 1
single-word answer "No" to the note from the jury, which, 2
she argues, wrongly gave the jury explicit permission to 3
return inconsistent verdicts, at its discretion. 4
A. The District Court's Supplemental Jury 5
Instruction was Erroneous 6
"A jury instruction is erroneous if it misleads 7
the jury as to the correct legal standard or does not 8
adequately inform the jury on the law." United States v. Al 9
Kassar, 660 F.3d 108, 126 (2d Cir. 2011) (alterations and 10
internal quotation marks omitted). Here, the court 11
initially explained to the jury that its verdict on the 12
narcotics conspiracy count should be "linked" to its 13
findings with respect to the felony enhancement because 14
Moran-Toala could be subject to the felony enhancement only 15
if the government proved that she unlawfully used her CBP 16
computer with the intent to further the narcotics 17
conspiracy. This instruction reflected the considerable 18
overlap in the legal elements of the two conspiracy charges, 19
and the facts applicable to each. The jury clearly 20
recognized the tension between a potential verdict 21
acquitting Moran-Toala of participating in a narcotics 22
conspiracy while finding that she agreed with another to 23
misuse her CBP computer with the intent to further that 24
18

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narcotics conspiracy, or vice versa. We can think of no 1
other coherent reason for the jury to send a note seeking 2
judicial guidance, a note that we understand to be 3
tantamount to a request for permission to unlink its 4
verdicts by ignoring the intent requirement in the felony 5
enhancement charge or by disregarding the majority of the 6
narcotics conspiracy charge. The district court, in 7
response, blessed the jury's clear desire to render verdicts 8
it considered inconsistent, or not "in agreement," with the 9
law and the evidence. 10
Inconsistent verdicts are often characterized as a 11
form of jury nullification. "Nullification is, by 12
definition, a violation of a juror's oath to apply the law 13
as instructed by the court -- in the words of the standard 14
oath administered to jurors in the federal courts, to render 15
a true verdict according to the law and the evidence." 16
United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997) 17
(internal quotation marks omitted; emphasis in original). 18
The case before us does not arise from jury nullification -- 19
the jury followed the court's instruction that an 20
inconsistent verdict was permissible. The jury's act would 21
have been one of nullification had the district court 22
answered "yes" to the jury's question as to whether 23
inconsistent verdicts were prohibited and the jury 24
19

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nevertheless returned the same verdict. But irrespective of 1
the jury's ultimate decision, the supplemental instruction 2
cleared the way for the jury to return verdicts the jurors 3
themselves could not reconcile in light of the court's 4
charge of law and the evidence presented. 5
In Thomas, "[w]e categorically reject[ed] the idea 6
that, in a society committed to the rule of law, jury 7
nullification is desirable or that courts may permit it to 8
occur when it is within their authority to prevent." Id. at 9
614. It plainly follows, as we have concluded, that there 10
is no error in a district court's refusal to give a jury a 11
charge that informs them of their right or ability to 12
nullify. See United States v. Edwards, 101 F.3d 17, 19 (2d 13
Cir. 1996) (per curiam). Nor have we faulted a district 14
court for instructing a jury that it has a "duty" to convict 15
if the government proves a defendant's guilt beyond a 16
reasonable doubt. United States v. Carr, 424 F.3d 213, 219- 17
20 (2d Cir. 2005) ("Nothing in our case law begins to 18
suggest that the court cannot also tell the jury 19
affirmatively that it has a duty to follow the law, even 20
though it may in fact have the power not to."). Thus "the 21
power of juries to 'nullify' or exercise a power of lenity 22
is just that -- a power; it is by no means a right." 23
Thomas, 116 F.3d at 615. 24
20

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We conclude that, in its very brief and 1
extemporaneous late-afternoon response to the jury's 2
question regarding a possible inconsistent verdict on the 3
narcotics conspiracy count and the felony enhancement, the 4
district court was effectively inviting them so to rule, 5
contrary to law. Such an "explicit instruction . . . 6
conveys an implied approval that runs the risk of degrading 7
the legal structure . . . ." United States v. Dougherty, 8
473 F.2d 1113, 1137 (D.C. Cir. 1972). Thus, the district 9
court's instruction misled the jury as to its duty to follow 10
the law. 11
B. Nature of the Error 12
1. Structural Error. "The Supreme Court has 13
distinguished two kinds of errors that can occur at, or in 14
relation to, a criminal proceeding: so-called 'trial 15
errors,' which are of relatively limited scope and which are 16
subject to harmless error review, and 'structural defects,' 17
which require reversal of an appealed conviction because 18
they 'affect[] the framework within which the trial 19
proceeds.'" United States v. Feliciano, 223 F.3d 102, 111 20
(2d Cir. 2000) (quoting Arizona v. Fulminante, 499 U.S. 279, 21
307-10 (1991)). "Errors are properly categorized as 22
structural only if they so fundamentally undermine the 23
fairness or the validity of the trial that they require 24
21

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voiding its result regardless of identifiable prejudice." 1
Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996). 2
Courts have recognized a limited number of 3
structural errors, all involving the violation of bedrock 4
constitutional rights, such as total deprivation of the 5
right to counsel, see Gideon v. Wainwright, 372 U.S. 335 6
(1963); United States v. Triumph Capital Grp., Inc., 487 7
F.3d 124, 131 (2d Cir. 2007); exclusion of jurors on the 8
basis of race, see Vasquez v. Hillery, 474 U.S. 254 (1986); 9
Tankleff v. Senkowski, 135 F.3d 235, 240 (2d Cir. 1998); and 10
improper closure of a courtroom to the public, see Waller v. 11
Georgia, 467 U.S. 39 (1984); United States v. Gupta, 699 12
F.3d 682, 688 (2d Cir. 2012). 13
The category of recognized structural errors with 14
regard to jury instructions is even more limited. Thus, as 15
a general proposition, "harmless-error analysis applies to 16
instructional errors so long as the error at issue does not 17
categorically 'vitiate all the jury's findings.'" Hedgpeth 18
v. Pulido, 555 U.S. 57, 61 (2008) (quoting Neder v. United 19
States, 527 U.S. 1, 11 (1999) (alteration omitted) (emphasis 20
in original)). 21
The instructional error here does not cross that 22
threshold, nor does it implicate the overall fundamental 23
fairness of Moran-Toala's otherwise well-tried case. In the 24
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event of inconsistent verdicts, to the extent they occurred 1
in this case, "[t]he most that can be said . . . is that the 2
verdict shows that either in the acquittal [on Count One] or 3
the conviction [on Count Two] the jury did not speak their 4
real conclusions, but that does not show that they were not 5
convinced of the defendant's guilt." Powell, 469 U.S. at 6
64-65 (internal quotation marks omitted). An instruction 7
permitting inconsistent verdicts calls into doubt only one 8
of the jury's verdicts -- which one we cannot say -- but not 9
both. Because the supplemental instruction did not infect 10
all of the jury's findings, we employ harmless error review. 11
Cf. United States v. Bunchan, 626 F.3d 29, 33-34 & n.2 (1st 12
Cir. 2010) (reviewing for plain error defendant's 13
unpreserved challenge to instruction that jurors "don't have 14
to follow my instructions anymore . . . . [W]e close the 15
door, and we can't tell whether or not you're doing what we 16
ask you to do," and declining to reach the question of 17
structural error). 18
2. Harmless Error. Since the error in the charge 19
was not structural, we are required to review it for 20
harmlessness. "We review a district court's jury 21
instructions de novo, reversing only where appellant can 22
show that, viewing the charge as a whole, there was a 23
prejudicial error." Carr, 424 F.3d at 218 (citations and 24
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internal quotation marks omitted). "An erroneous 1
instruction, unless harmless, requires a new trial." Id. 2
(internal quotation marks omitted). Instructional error is 3
harmless only if it is "clear beyond a reasonable doubt that 4
a rational jury would have found the defendant guilty absent 5
the error." Neder, 527 U.S. at 18. 6
Harmless error review in this case is complicated 7
by the factual, if not legal, inconsistency in the jury's 8
verdicts. The very reason such verdicts are unreviewable in 9
and of themselves is because we could do no more than "try 10
to guess which of the inconsistent verdicts is the one the 11
jury really meant." Acosta, 17 F.3d at 545 (internal 12
quotation marks omitted). We might speculate as to what the 13
jury actually had in mind in order to seek to reconcile the 14
two verdicts: perhaps the jury found that Moran-Toala had 15
insufficient knowledge of the narcotics conspiracy to 16
support a conviction on Count One, in which case a properly 17
instructed jury likely would have also rejected the felony 18
enhancement. Or the jury might have found that Moran- 19
Toala's intent to further the narcotics conspiracy by 20
misusing her CBP computer also proved her membership in the 21
narcotics conspiracy, but it did not wish to convict on such 22
a serious charge without evidence that she personally 23
imported or sold drugs; in that case, a properly instructed 24
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jury likely would have applied the felony enhancement. The 1
problem with either speculation, though, beyond the fact 2
that they are speculations, is that they do not account for 3
the jury's query: "Count 2: must the verdict in #4 be in 4
agreement with Count #1?" This note strongly suggests that 5
the jury itself could not reconcile the verdicts on the two 6
counts and was seeking (and obtained) permission to render 7
its contemplated verdicts despite the inconsistency. 8
There is thus no serious doubt that the erroneous 9
instruction contributed to any inconsistency in the verdicts 10
inasmuch as it explicitly permitted them. 5 We are not 11
unaware of the fact that the district court's instruction 12
ultimately resulted in a highly favorable verdict for Moran- 13
Toala, who was convicted of the less serious charge and 14
acquitted of the more serious one. But, in light of the 15
dearth of evidence of Moran-Toala's knowledge of the 16
Espinal-Polanco airport conspiracy, it is nevertheless 17
possible that a jury would have acquitted her of the 18
narcotics conspiracy and declined to apply the felony 19
enhancement had the supplemental instruction been correct 20
5 Of course, the jury instruction also permitted the
jury to return a verdict convicting Moran-Toala on the
narcotics conspiracy charge, but declining to elevate the
unlawful computer access conspiracy conviction from a
misdemeanor to a felony. That the jury chose otherwise is
to Moran-Taola's substantial benefit.
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and informed the jury that inconsistent verdicts are 1
impermissible. We therefore cannot say with any confidence 2
that it is clear beyond a reasonable doubt that a properly 3
instructed jury would have convicted Moran-Toala of felony- 4
level unlawful computer access conspiracy. Accordingly, the 5
conviction on Count Two must be vacated and the case 6
remanded to the district court for retrial, should the 7
government be inclined to pursue the charge. 8
II. Rule 404(b) Evidence 9
Although unnecessary to the disposition of this 10
appeal, we nevertheless address the question of the 11
propriety of the district court's admission of Moran-Toala's 12
Florida plea allocution under Rule 404(b). We do so in 13
light of the fact that the issue has been fully briefed and 14
argued, and for the benefit of the district court should the 15
unlawful computer access conspiracy charge be retried on 16
remand. 17
Rule 404(b)(1) of the Federal Rules of Evidence 18
provides that "[e]vidence of a crime, wrong, or other act is 19
not admissible to prove a person's character in order to 20
show that on a particular occasion the person acted in 21
accordance with the character." Prior crime evidence may, 22
however, be admissible "for another purpose, such as proving 23
motive, opportunity, intent, preparation, plan, knowledge, 24
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identity, absence of mistake, or lack of accident." Fed. R. 1
Evid. 404(b)(2). This Circuit "follows the 'inclusionary' 2
approach, which admits all 'other act' evidence that does 3
not serve the sole purpose of showing the defendant's bad 4
character and that is neither overly prejudicial under Rule 5
403 nor irrelevant under Rule 402." United States v. 6
Curley, 639 F.3d 50, 56 (2d Cir. 2011) (citation omitted). 7
We review the district court's evidentiary ruling 8
for abuse of discretion. United States v. McCallum, 584 9
F.3d 471, 474 (2d Cir. 2009). Factors relevant to our 10
review include whether: "(1) the prior crimes evidence was 11
'offered for a proper purpose'; (2) the evidence was 12
relevant to a disputed issue; (3) the probative value of the 13
evidence was substantially outweighed by its potential for 14
unfair prejudice pursuant to Rule 403; and (4) the court 15
administered an appropriate limiting instruction." Id. at 16
475 (quoting Huddleston v. United States, 485 U.S. 681, 691- 17
92 (1988)). 18
It is undisputed that the Florida plea allocution 19
was offered to show Moran-Toala's knowledge that her TECS 20
searches furthered the JFK Airport narcotics conspiracy -- 21
both a proper purpose under the Rule and a highly disputed 22
issue at trial. Instead, Moran-Toala objects that no jury 23
could neutrally determine that she conducted inappropriate 24
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TECS searches, but not in furtherance of a narcotics 1
conspiracy, once it found out that she had done just that in 2
another narcotics conspiracy in Florida. 3
The Florida plea allocution was both highly 4
probative of Moran-Toala's knowledge of the New York 5
conspiracy and highly prejudicial, as the Florida conviction 6
is nearly identical to the New York charges. The court 7
recognized both the probative value of the proffered 8
evidence and the real problem of prejudice. The district 9
court initially reserved judgment on the government's Rule 10
404(b) motion, waiting first to review the other evidence 11
that was introduced at trial. It was only after weighing 12
the probative value of the plea allocution, by noting that 13
the issue of Moran-Toala's knowledge was "very much at 14
play," and limiting its prejudicial effect, by pruning the 15
government's proffered evidence to a focused and brief 16
stipulation, that the court allowed the government to inform 17
the jury about the Florida conviction. This reflects the 18
proper balancing process required under Rule 403, with the 19
district court engaging in a serious effort to minimize the 20
prejudicial effect of the Florida conviction on the jury. 21
Cf. id. at 477 (district court abused its discretion in 22
admitting evidence of prior conviction under Rule 404(b) 23
without conducting any Rule 403 balancing at all). "Only 24
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rarely -- and in extraordinarily compelling circumstances -- 1
will we, from the vista of a cold appellate record, reverse 2
a district court's on-the-spot judgment concerning the 3
relative weighing of probative value and unfair effect." 4
United States v. Awadallah, 436 F.3d 125, 134 (2d Cir. 2006) 5
(internal quotation marks omitted). This not such an 6
extraordinary case, and we find no abuse of discretion in 7
the district court's evidentiary ruling. 8
CONCLUSION 9
The judgment of conviction is vacated, and the 10
case is remanded to the district court for further 11
proceedings. 12
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