United States v. Haynes

1
12-626
United States v. Haynes
UNITED STATES COURT OF APPEALS 1
2
For the Second Circuit 3
____________________________________ 4
5
August Term, 2013 6
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Argued: March 8, 2013 Decided: September 5, 2013 8
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Docket No. 12-626-cr 10
____________________________________ 11
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United States of America, 13
14
Appellee, 15
16
—v.— 17
18
Tara Haynes 19
20
Defendant-Appellant. 21
___________________________________ 22
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Before: SACK and LOHIER, Circuit Judges, and KOELTL, District Judge.* 24
25
After a jury trial in the United States District Court for the Northern 26
District of New York (“NDNY”), the defendant, Tara Haynes, was convicted of 27
* The Honorable John G. Koeltl, of the United States District Court for the
Southern District of New York, sitting by designation.

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one count of importation of 500 grams or more of a substance containing 28
methamphetamine in violation of 21 U.S.C. §§ 952 and 963 and one count of 29
possession with intent to distribute that substance in violation of 21 U.S.C. 30
§ 841(a)(1). The defendant was sentenced principally to 188 months 31
imprisonment on each count to run concurrently. In this appeal from the 32
judgment entered on January 30, 2012, the defendant alleges numerous errors. 33
We find that the cumulative effect of the various errors—including the 34
defendant’s improper shackling, the failure to investigate potential jury 35
misconduct, an improper Allen charge, and serious evidentiary errors— 36
undermined the guarantee of fundamental fairness to which the defendant is 37
entitled. Therefore, we vacate the defendant’s conviction and remand for 38
proceedings consistent with this opinion. 39
40
VACATED AND REMANDED. 41
______________ 42
MARC FERNICH AND JONATHAN SAVELLA, Law Office of Marc Fernich, for 43
Defendant-Appellant Tara Haynes. 44
45

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JULIE S. PFLUGER AND PAUL D. SILVER, Assistant United States Attorneys, 46
for Richard S. Hartunian, United States Attorney for the Northern District of 47
New York, for Appellee United States of America. 48
______________ 49
John G. Koeltl, District Judge: 50
After a jury trial in the United States District Court for the Northern 51
District of New York (“NDNY”), the defendant, Tara Haynes, was convicted of 52
one count of importation of 500 grams or more of a substance containing 53
methamphetamine in violation of 21 U.S.C. §§ 952 and 963 and one count of 54
possession with intent to distribute that substance in violation of 21 U.S.C. 55
§ 841(a)(1). The defendant was sentenced principally to 188 months 56
imprisonment on each count to run concurrently. In this appeal from the 57
judgment entered on January 30, 2012, the defendant alleges numerous errors. 58
We find that the cumulative effect of the various errors—including the 59
defendant’s improper shackling, the failure to investigate potential jury 60
misconduct, an improper Allen charge, and serious evidentiary errors— 61
undermined the guarantee of fundamental fairness to which the defendant is 62

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entitled. Therefore, we VACATE the defendant’s conviction and REMAND for 63
proceedings consistent with this opinion. 64
65
BACKGROUND 66
On June 2, 2011, the defendant, Tara Haynes, was arrested at the border of 67
the United States and Canada at the Champlain Port of Entry in New York. 68
Customs and Border Patrol Officers recovered approximately 70,000 pills 69
wrapped in plastic from the gas tank of the rental car the defendant was driving. 70
The pills contained methamphetamine. 71
On August 11, 2011, a grand jury in the NDNY returned a two-count 72
superseding indictment against the defendant. Count I alleged that the 73
defendant had knowingly and intentionally imported and attempted to import 74
into the United States various controlled substances, including 500 grams or 75
more of a mixture or substance containing a detectable amount of 76
methamphetamine, in violation of 21 U.S.C. §§ 952 and 963. Count II alleged that 77
the defendant knowingly and intentionally possessed with the intent to 78
distribute those controlled substances in violation of 21 U.S.C. § 841(a)(1). 79

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The defendant’s trial began on August 16, 2011. The defendant was 80
shackled throughout the trial. The trial transcript does not contain any findings 81
as to why it was necessary to shackle the defendant during the trial. However, 82
when the defendant took the stand to testify, the Court instructed the jury to 83
leave the courtroom, and the defendant walked to the stand out of the presence 84
of the jury. The only other mention of the shackles in the record occurred when 85
defense counsel stated in summation as follows: 86
[The defendant is] locked here in shackles right now. She was 87
sitting up in the [witness stand] and I don’t want you to think it was 88
disrespect that she didn’t stand up but it’s the rules of the court 89
because they had taken awa[y] her liberty. It’s not the judge’s fault. 90
This is what these agents did. No criminal record, no prior arrests, 91
34 years old, consistent job for four years, two kids and they have 92
taken away her liberties on this. 93
94
(Trial Tr. 626) 95
The trial lasted only four days from the start of jury selection to the 96
beginning of jury deliberations. The evidence was introduced in less than three 97
days. The Government’s theory at trial was that the defendant was a “drug 98
courier,” which was why she acted nervously and gave inconsistent responses to 99

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law enforcement officers at the border. (Trial Tr. 25) The defendant’s theory at 100
trial was that she was simply a “blind mule” who had no knowledge that there 101
were any narcotics in her rental car. (Trial Tr. 34) 102
At trial, law enforcement officers testified about the circumstances of the 103
defendant’s arrest at the border and the inconsistent statements that the 104
defendant made during her arrest. The officers testified that they observed 105
indications that drugs were present in the car, including the presence of masking 106
agents used to hide the odor of drugs, namely a newly opened air freshener 107
hanging from the car’s windshield and an aerosol spray can described as “new 108
car scent” recovered from the defendant’s purse. (Trial Tr. 201, 227) The 109
defendant asked if she could discard the aerosol can, but was told that she could 110
not. There was also an overwhelming smell of gasoline in the car. A law 111
enforcement agent also testified that the defendant had a history of border 112
crossings into the United States and provided details about the circumstances of 113
those prior crossings. 114
The officers recovered approximately 70,000 pills weighing approximately 115
49.4 pounds wrapped in plastic and stuffed tightly in the rental car’s gas tank. 116

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An expert witness estimated that the value of the pills, which contained 117
methamphetamine, was between $500,000 and $2,100,000. 118
Customs and Border Protection Officer Troy Rabideau testified in detail 119
about the fuel light in the car, which indicated that the gas tank was empty 120
although his search revealed that there were approximately four or five gallons 121
of gas in the tank. The Government asked Officer Rabideau why the fuel light 122
would be on when there was gas in the car, and defense counsel objected on the 123
ground that the question called for expert testimony. The objection was 124
overruled. Officer Rabideau answered as follows: 125
On the outside of this cylinder, there’s a float and that’s –- the float is 126
what shows that the gas level, so as the float goes down, the gas 127
level in the vehicle obviously goes down. So, when the drugs were 128
placed and the float was pushed to the bottom, drugs holding that to 129
the bottom would always read zero kilometers to empty. That 130
would always be on empty. 131
132
(Trial Tr. 287-88) Officer Rabideau testified that the fuel indicator would remain 133
on empty “[f]or as long as those drugs were in the vehicle.” (Trial Tr. 288) 134
Defense counsel objected on the basis of lack of foundation, and the Court 135
overruled the objection. Officer Rabideau testified that he had not attended 136

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“mechanic school,” but that he had “looked in the gas tank prior to this” and that 137
the fuel light had been on throughout his investigation. (Trial Tr. 309) 138
Before lunch on the third day of trial, the Government rested. The defense 139
case consisted of the testimony of a friend of the defendant who explained that 140
the defendant was a single mother of two children and that she had once taken a 141
seemingly benign New Year’s Eve trip with the defendant from Canada to New 142
York in the defendant’s car. 143
The defendant testified in her own defense. She testified that she rented 144
the car on Tuesday, May 31, 2011 in anticipation of traveling to New York City 145
for the weekend. On Wednesday, June 1, 2011, the defendant was driving with 146
her former boyfriend who pointed out the aerosol can in the car’s glove 147
compartment. The defendant testified that at about 9:30p.m. on Thursday, June 148
2, 2011, just prior to leaving for New York, she stopped at a convenience store 149
and purchased some food for her ride. She also bought a hanging air freshener 150
because she thought it was cute. She testified that as she approached the 151
Champlain Port of Entry she removed the aerosol can from the glove 152
compartment to use it to mask her foot odor, but she found that it was empty. 153

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The defendant testified that she noticed the fuel light turn on as she approached 154
the border, and she decided that she would refuel after crossing the border. She 155
denied knowing that there were any drugs in the car. 156
The defendant described her interactions with law enforcement officers at 157
the border and the circumstances surrounding her arrest. The defendant 158
admitted that she had lied to the officers about whether she took the rental car in 159
for an oil change prior to reaching the border crossing. The defendant also 160
testified that she was “very upset” and “shocked” when an agent told her that 161
70,000 ecstasy pills had been recovered from the rental car. (Trial Tr. 542-43) 162
On cross-examination, the Government pointed out that although the 163
defendant had testified that the agent had told her there were 70,000 ecstasy pills 164
recovered from the car, the pills had not been counted by the time the agent met 165
with the defendant. The defendant also admitted on cross-examination that she 166
had lied to the officers about why she was going to New York. 167
The defense called an expert witness to support its theory that the 168
defendant was operating as a “blind mule” for drug distributors. The defense’s 169
expert witness, Richard Stratton, had been a marijuana distributor who had 170

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trafficked drugs across international borders and had studied and written articles 171
about drug distribution. Over the Government’s objection, the Court permitted 172
the defense expert witness to testify regarding the modus operandi of drug 173
distributors provided that neither party would attempt to “elicit the expert’s 174
opinions on the ultimate issue of defendant’s knowledge.” (Trial Tr. 499) Mr. 175
Stratton testified that when he was a drug distributor he “used blind mules 176
whenever [h]e had the opportunity,” and explained their advantages. (Trial Tr. 177
567) 178
In its rebuttal case, the Government re-called Special Agent Russell Linstad 179
of the Department of Homeland Security who had testified as an expert witness 180
in the Government’s case-in-chief about the value of the drugs seized. The 181
Government re-called Agent Linstad to “point out the flaws in a blind mule 182
scenario” as explained by the defense and its expert witness. (Trial Tr. 589) Agent 183
Linstad testified as follows: 184
With the blind mule . . . the person’s going to be unwitting, not 185
know that there’s anything going on with the load. So in this case, 186
after reviewing the case, in my opinion the defendant realized, 187
especially with inconsistency in the [defendant’s] statements, the 188
strong odor of gasoline, the fuel light and also masking agents to 189

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keep it. Again, an organization wants it blind. They can’t have 190
people know that there is a load or that there [are] narcotics in the 191
vehicle. 192
193
(Trial Tr. 589) 194
The defense rested at the end of the third day of trial. The following day, 195
after summations, the Court charged the jury. The jury deliberated for 196
approximately three and a half hours before sending a deadlock note, which the 197
Court explained as follows: 198
I have received a note, timed 3:36, from the foreperson of the jury, 199
and I have now given copies to both counsel. I have asked our clerk 200
to mark the note for identification as Court’s Exhibit No. 1. The note 201
says, “Your Honor, we are hopelessly deadlocked. Help.” 202
203
As both counsel know, the jury’s been out since approximately 12 204
P.M., and at this point in time my plan is to bring them back in and 205
informally ask them to go back in and continue their deliberations 206
with an eye toward whether they can reach a verdict. 207
208
. . . . 209
210
I’m not at the point right at this moment where I think that I have to 211
give the Allen charge. . . . [M]y plan is to bring [the jury] in, 212
acknowledge that they have been at it for a few hours, but to tell 213
them that for both sides this is a very important matter and to ask 214
them to continue their deliberations. 215
216

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(Trial Tr. 681) There were no objections. The Judge then called the jury back into 217
the courtroom, but did more than simply ask the jury to continue to deliberate. 218
The Court instructed the jury as follows: 219
Members of the jury, I’m going to ask you to return to the jury room 220
and deliberate further. I realize that you are having some difficulty 221
reaching a unanimous agreement, but that is not unusual. And 222
often after further discussions jurors are able to work out their 223
differences and agree. 224
225
It is your duty as jurors to consult with one another and to deliberate 226
with a view toward reaching an agreement, if you can do so without 227
violence to individual judgment. Each of you must decide the case 228
for yourself. But do so only after an impartial consideration of the 229
evidence in the case with your fellow jurors. In the course of your 230
deliberations, do not hesitate to re-examine your own views and 231
change your opinion if convinced it is erroneous but do not 232
surrender your honest conviction as to the weight or effect of 233
evidence solely because of the opinion of your fellow jurors or for 234
the mere purpose of returning a verdict. 235
236
Listen carefully to what the other jurors have to say and then decide 237
for yourself if the Government has proved the defendant guilty 238
beyond a reasonable doubt. 239
240
What I have just said is not meant to rush or pressure you into 241
agreeing on a verdict. Take as much time as you need to discuss 242
things. There is no hurry with this instruction, I will now return you 243
to the jury room. Thank you. 244
245

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(Trial Tr. 682-83) 246
Although the Court had said that it was not going to give an Allen charge, 247
the supplemental charge that the Court gave had the hallmarks of what is 248
generally known as a modified Allen charge. See Allen v. United States, 164 U.S. 249
492 (1896); see also Spears v. Greiner, 459 F.3d 200, 204 n.3 (2d Cir. 2006). It 250
instructed the jurors to consult with each other, to deliberate with a view toward 251
reaching a verdict, and told them not to “hesitate to re-examine [their] own 252
views and change [their] opinion,” but not to “surrender [their] honest 253
conviction.” (Trial Tr. 682-83) Neither the Government nor the defense objected 254
to the supplemental charge. 255
Later that day, at approximately 5:00p.m., the Judge explained to counsel 256
that the jury would be dismissed and asked to return the following Monday at 257
9:30a.m. The Court said that it would not “give [the jury] a full Allen charge at 258
this time,” but would ask them to come back on Monday to try to come to a 259
unanimous verdict.” (Trial Tr. 684) At that point, defense counsel indicated that 260
he wanted to discuss another matter with the Court concerning a statement 261

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made to him by an alternate juror about a conversation between jurors prior to 262
the beginning of their deliberations: 263
Judge, I just note that when I had gone outside last time I saw the 264
alternate, he talked to me and he said that some of the women on the 265
jury had said that [the defendant] might be guilty, she’s here. And 266
he had said that didn’t fly, in sum and substance of that. I mean, 267
obviously they shouldn’t have – he obviously didn’t give any 268
specifics or anything like that but [it] really does concern me that 269
there was some sort of discussion to that extent and, I mean, it 270
would be a dereliction of my duty if I didn’t ask for a mistrial in 271
th[is] case. 272
273
(Trial Tr. 684-85) The Judge responded that the jury had been “continuously 274
advised that if there were any discussions prior to deliberations, that it should be 275
brought to [the Court’s] attention immediately,” and “no juror brought anything 276
like that to [the Court’s] attention.” (Trial Tr. 685) The Court continued, “I’m not 277
saying that the information that you’re getting from the alternate isn’t accurate. 278
I’m just saying that no juror brought anything like that to my attention.” (Trial 279
Tr. 685) The Judge denied the motion for a mistrial and did not inquire further 280
into the comments that defense counsel had brought to the Court’s attention. 281

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The Judge then received a note from the jury requesting clarification on the 282
counts, the amount of drugs, reasonable doubt, and the absence of evidence. The 283
Judge explained to the parties that the Judge intended to dismiss the jurors and 284
address the note on Monday morning by re-reading the portions of the 285
indictment, verdict sheet, and charge referenced in the note from the jury. 286
However, before the Court brought the jury out to be dismissed for the 287
day, defense counsel again raised the alleged comments by the alternate juror 288
and requested a “curative instruction” or for a renewal of the instruction that “if 289
there was any discussion about the presumption [of innocence] or anything like 290
that prior to the entry of deliberations, that it be disclosed to the Court.” (Trial Tr. 291
689) The Judge responded that the Court had “reminded the jury that [the 292
defendant] is presumed innocent at all times” and that because there was “no 293
indication from any juror that there was any inappropriate discussion [the Court 294
would] refrain from questioning the jury at [this] time.” (Trial Tr. 689) The Judge 295
also stated that the Judge would not inquire about any premature deliberations. 296
The jury re-entered the courtroom, and the Court dismissed the jurors for 297
the day. In the course of dismissing the jurors, the Judge stated: 298

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I believe that on Monday, after you’ve had a restful weekend and 299
are given instructions by me, when you retire into the jury 300
deliberation room and you give each other fair and full 301
consideration, you will be able to arrive at a just verdict. 302
303
Remember that you should not feel –- you should not feel any 304
pressure of time in reaching your verdict. You should listen to each 305
other’s views and work as diligently as you can to arrive at a 306
unanimous verdict. Rest assured that I will respond to your note 307
Monday morning and then let you continue your deliberations. 308
309
(Trial Tr. 692) There was no objection. 310
311
On Monday, with the agreement of the parties, the Judge reviewed the 312
verdict sheet with the jury and reread the charge on reasonable doubt, direct and 313
circumstantial evidence, and certain charges relating to the absence of evidence. 314
At approximately 10:00a.m., the Judge excused the jury to continue their 315
deliberations. At approximately 2:30p.m., after about eight total hours of 316
deliberations, the jury returned a unanimous verdict of guilty on both counts of 317
the indictment.1 318
1 On the Special Verdict Form, the jury found the defendant guilty of importation
and possession with intent to distribute 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, but found that
the Government had not proved the defendant’s guilt beyond a reasonable doubt

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On January 30, 2012, the defendant was sentenced principally to a term of 319
188 months imprisonment on each count to run concurrently. On February 13, 320
2012, the defendant filed a notice of appeal. 321
322
DISCUSSION 323
The defendant argues that her conviction should be vacated because of 324
numerous trial errors. In particular, the defendant raises the following grounds 325
for vacating her conviction: (i) denial of due process because she was tried in 326
shackles without a finding of necessity on the record; (ii) the Court’s failure to 327
investigate alleged juror misconduct; (iii) an improper Allen charge; (iv) 328
evidentiary errors; and (v) ineffective assistance of counsel. We find that the 329
defendant was improperly tried in shackles, the Court did not fulfill its 330
obligation to investigate the allegation of juror misconduct, the Court gave an 331
improper Allen charge, and certain lay and expert testimony was erroneously 332
admitted at trial. These errors occurred in the context of a relatively short trial 333
of importation or possession with intent to distribute 50 grams or more of
methamphetamine.

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during which the jury deliberated for approximately three and a half hours 334
before returning a deadlock note, and then deliberated for approximately 335
another five hours before returning a verdict of guilty on both counts. Under all 336
the circumstances of this case, the cumulative effect of these errors was to cast 337
serious doubt on whether the defendant was provided due process of law at her 338
trial. Accordingly, we vacate the defendant’s conviction and remand for further 339
proceedings consistent with this opinion. 340
341
I. 342
A. 343
The defendant argues that her conviction should be vacated because she 344
was tried in shackles without a specific finding of necessity on the record by the 345
District Court Judge. It is beyond dispute that a defendant may not be tried in 346
shackles unless the trial judge finds on the record that it is necessary to use such 347
a restraint as a last resort to satisfy a compelling interest such as preserving the 348
safety of persons in the courtroom. “The law has long forbidden routine use of 349
visible shackles during the guilt phase; it permits a State to shackle a criminal 350

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defendant only in the presence of a special need.” Deck v. Missouri, 544 U.S. 622, 351
626 (2005). This rule of fundamental fairness is a basic element of the due 352
process of law protected by the Constitution. Id. at 629. As the Supreme Court 353
has emphasized: 354
[T]o contemplate such a technique, much less see it, arouses a feeling 355
that no person should be tried while shackled and gagged except as 356
a last resort. Not only is it possible that the sight of shackles and 357
gags might have a significant effect on the jury’s feelings about the 358
defendant, but the use of this technique is itself something of an 359
affront to the very dignity and decorum of judicial proceedings that 360
the judge is seeking to uphold. 361
362
Illinois v. Allen, 397 U.S. 337, 344 (1970). 363
This Court has therefore held that a trial judge may order physical 364
restraints on a party only “when the court has found those restraints to be 365
necessary to maintain safety or security; but the court must impose no greater 366
restraints than are necessary, and it must take steps to minimize the prejudice 367
resulting from the presence of the restraints.” Davidson v. Riley, 44 F.3d 1118, 368
1122-23 (2d Cir. 1995). A court may not delegate this discretion to another party, 369
including the Bureau of Prisons or the United States Marshals, because the court 370
must “consider all the evidence and ultimately make the decision [for itself].” Id. 371

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at 1123 (quoting Lemons v. Skidmore, 985 F.2d 354, 358 (7th Cir. 1993)); see 372
Hameed v. Mann, 57 F.3d 217, 222 (2d Cir. 1995). A judge may receive evidence 373
if there is any factual dispute relevant to trying a defendant in physical restraints. 374
See Hameed, 57 F.3d at 222. However, the ultimate decision to impose any 375
physical restraints during trial must be made by the District Court judge alone 376
and must be made on the record. See id. Moreover, “[w]hen the trial judge 377
delegates a decision, and gives no reason for the decision, that is not an exercise 378
of discretion but an absence of and an abuse of discretion.” Davidson, 44 F.3d at 379
1123 (quoting Lemons, 985 F.2d at 358)); see Hameed, 57 F.3d at 222. 380
In this case, there is no suggestion and certainly no finding on the record 381
why it was necessary to shackle the defendant, who had no prior criminal 382
history. There was no finding why the defendant was a threat to anyone or why 383
the presence of United States Deputy Marshals in the courtroom would not have 384
been sufficient to maintain the safety and security of all those present. 385
Accordingly, it was clear error and a violation of the defendant’s constitutional 386
right to due process of law to have required the defendant to stand trial in 387
shackles without a specific finding of necessity on the record by the trial judge. 388

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During oral argument in this case, the Government explained the 389
defendant’s shackling in part by representing that it has been standard practice 390
in the NDNY for criminal defendants in custody to be shackled during trial 391
without a particularized finding of necessity on the record by the District Court 392
judge. Because that troubling representation indicated that the practice was 393
inconsistent with long-standing Supreme Court and Second Circuit precedent, 394
this Court ordered the Government to explain in detail the alleged practice of 395
trying defendants in shackles. After an initial incomplete response, the 396
Government submitted a letter explaining as follows: 397
[T]he Marshals Service advised . . . that defendants are neither 398
routinely nor arbitrarily shackled during jury trials. In those cases 399
where the Marshals Service believes that shackling is prudent or 400
necessary, the Marshals Service articulates the basis for its 401
recommendation to the trial judge. This recommendation is based 402
upon factors such as the defendant’s criminal history, the sentence 403
the defendant faces upon conviction and the defendant’s conduct 404
while incarcerated. In all cases, it is the trial judge who makes the 405
final determination regarding shackling. In the event the trial judge 406
agrees with the Marshals Service’s recommendation regarding 407
shackling, leg irons, not handcuffs or waist chains, generally are 408
utilized. Additionally, the Marshals Service made clear that they 409
make every effort to ensure that the leg irons are obscured from the 410
jury’s view, both inside and outside of the courtroom. . . . 411
412

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[T]he judges [with the exception of one who could not be reached] 413
reported a practice consistent with the practice described by the 414
Marshals Service. 415
416
The judges in this District take into account any security concerns 417
raised by the Marshals Service that bear upon whether shackles 418
ought to be used in a particular case. Armed with that information, 419
the judges make an independent determination, on a case-by-case 420
basis, whether the use of shackles is warranted. The judges also 421
relayed that in the event shackles are used, every precaution is taken 422
to ensure that those shackles are not visible to the jury. . . . 423
424
One of the responding judges indicated that he informs the 425
defendant of his decision and provides the defendant an 426
opportunity to be heard. Other judges do not create a record of their 427
determinations; a record would be created if the defendant raised an 428
objection to the use of shackles. 429
430
(Letter of Richard S. Hartunian by Paul D. Silver, ECF No. 82 (Apr. 11, 2013), at 2) 431
The general procedures, to the extent that they were accurately portrayed 432
to this Court, do not conform to the requirements of clear Supreme Court and 433
Second Circuit precedent. No physical restraints may be imposed on a criminal 434
defendant during trial unless the District Court finds on the record that they are 435
a necessary last resort. Where the District Court finds that shackles are necessary 436
for the safety of the defendant or any persons in the courtroom, the Court must 437

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ensure that the restraints are no greater than necessary to ensure safety during 438
trial, and the Court must take steps to minimize any prejudice to the defendant 439
from being tried in physical restraints. See Davidson, 44 F.3d at 1122-23. Any 440
finding of necessity and all accommodations made to minimize the extent of the 441
defendant’s restraint during trial or to ensure that the jury does not become 442
aware of any physical restraints on the defendant must be made on the record by 443
the District Court. 444
The Government argues that there is no basis for reversal unless the 445
shackles had a substantial and injurious effect on the jury’s verdict, and the 446
presence of the shackles could not have affected the jury’s verdict unless the jury 447
actually saw them. See Williams v. Woodford, 306 F.3d 665, 689 (9th Cir. 2002), 448
abrogated on other grounds by Williams v. Woodford, 384 F.3d 567 (9th Cir. 449
2004); Moon v. Head, 285 F.3d 1301, 1307 (11th Cir. 2002). The record is silent as 450
to whether any of the jurors saw the shackles during the trial. Defense counsel 451
made some effort to avoid having the jurors see the shackles when the defendant 452
took the stand to testify, but then—for whatever reason—he drew attention to 453

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the shackling in the course of his summation. The jury was thus well aware of 454
the shackling during their deliberations. 455
While we could remand this case for an evidentiary hearing to determine when 456
the jurors first became aware of the shackles, any such hearing would be time 457
consuming and burdensome for the jurors. Moreover, the trial court erred in 458
permitting the defendant to be tried in shackles without a finding on the record 459
that there was a compelling reason to do so that could not be achieved by less 460
onerous means. It is unnecessary to remand this case for a hearing as to the 461
necessity of trying the defendant in shackles and when the jurors became aware 462
of the shackles because, as explained below, the cumulative effect of all the errors 463
denied the defendant a fundamentally fair trial.2 At any subsequent proceedings 464
2 To the extent that the defendant asserts that defense counsel’s acquiescence in
the decision to try the defendant in shackles and then to raise that fact with the
jury during summation constitutes ineffective assistance of counsel, this
argument is addressed infra at III.
The Government argues that defense counsel’s decision to refer in
summation to the physical restraints on the defendant constitutes waiver. See
United States v. Quinones, 511 F.3d 289, 320-21 (2d Cir. 2007) (“The law is well
established that if, as a tactical matter, a party raises no objection to a purported
error, such inaction constitutes a true waiver which will negate even plain error
review.” (internal quotation marks omitted)). However, it was error for the

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consistent with this opinion, the District Court should decide on the record 465
whether shackling the defendant is necessary as a last resort to satisfy a 466
compelling reason, such as the preservation of safety in the courtroom. 467
468
B. 469
The defendant argues that her conviction should be reversed because the 470
District Court failed to investigate the allegation of juror misconduct that defense 471
counsel brought to the Court’s attention. Defense counsel moved for a mistrial 472
because he had heard from one of the alternate jurors that prior to deliberations 473
“some of the women on the jury had said that [the defendant] might be guilty, 474
[because] she’s here.” (Trial Tr. 684-85) The Court denied the motion for a 475
mistrial and declined to investigate the matter or to speak with the alternate 476
Court to try the defendant in shackles without making a finding of necessity on
the record, and that error contributed to the cumulative effect of a series of errors
that denied the defendant a fundamentally fair trial. There is no indication that
defense counsel waived that error. See id. Moreover, we do not know the
rationale for referring to the shackles in summation and whether any of the
jurors were aware of the shackles before that time.

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regarding the jurors’ alleged comments even though the Court conceded that it 477
was not disputing the accuracy of the alternate juror’s account. 478
The alleged comments of the jurors as reported to defense counsel raise 479
two concerns: (i) that members of the jury were actually biased against the 480
defendant; and (ii) that the jury deliberated prematurely in violation of the 481
Judge’s instructions not to deliberate until they had heard all the evidence and 482
were instructed on the law. It is well established that at minimum, “[d]ue 483
process means a jury capable and willing to decide the case solely on the 484
evidence before it, and a trial judge ever watchful to prevent prejudicial 485
occurrences and to determine the effect of such occurrences when they happen.” 486
Smith v. Phillips, 455 U.S. 209, 217 (1982). Furthermore, “jurors must not engage 487
in discussions of a case before they have heard both the evidence and the court’s 488
legal instructions and have begun formally deliberating as a collective body.” 489
See United States v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (quoting United States v. 490
Resko, 3 F.3d 684, 688 (3d Cir. 1993)). Where the District Court instructs the jury 491
to refrain from premature deliberations, as the Court did in this case, and the 492
jury nevertheless discusses the case prior to the close of trial, that premature 493

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deliberation may constitute juror misconduct. Cox, 324 F.3d at 86. The 494
allegation of premature deliberations in this case was exacerbated by the fact that 495
the alternate juror allegedly said that jurors had questioned the presumption of 496
innocence for the defendant simply because she was on trial. 497
Faced with a credible allegation of juror misconduct during trial, a court 498
has an obligation to investigate and, if necessary, correct the problem. United 499
States v. Peterson, 385 F.3d 127, 134 (2d Cir. 2004); Cox, 324 F.3d at 88. The 500
District Court “has broad flexibility in such matters, especially when the alleged 501
prejudice results from statements by the jurors themselves, and not from media 502
publicity or other outside influences.” United States v. Thai, 29 F.3d 785, 803 (2d 503
Cir. 1994) (internal quotation marks omitted); see Cox, 324 F.3d at 87. A trial 504
judge’s handling of juror misconduct and the Court’s findings with respect to a 505
jury’s impartiality are reviewed for abuse of discretion. Peterson, 385 F.3d at 134. 506
In this case, the trial Court abused its discretion by not conducting any 507
inquiry about what the Court acknowledged might well be an accurate allegation 508
of juror misconduct. Defense counsel asked for further investigation and a 509
curative instruction, but the Court denied both requests. Without ever 510

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disturbing the jury deliberations, the Court could have asked the alternate juror 511
what exactly was said and by whom, and then made a determination of what, if 512
any, further investigation was required. Only if the preliminary inquiry 513
produced a specific and credible reason to conduct further inquiries would it 514
have been necessary to pursue further measures. See id. at 133-36 (finding that 515
the examination and recusal of an “unbalanced” juror together with satisfactory 516
responses by the remaining jurors as to their impartiality was within the trial 517
court’s discretion). The Court abused its discretion by failing to conduct any 518
inquiry to determine if the allegation of juror misconduct was true. 519
520
C. 521
The defendant argues that her conviction should be vacated because the 522
Court gave the jury an improper Allen charge. After approximately four hours 523
of deliberations, which resulted in a deadlock note and a modified Allen charge, 524
the jury returned a note seeking clarification of the charges and the instruction on 525
guilt beyond a reasonable doubt. The Court and the parties agreed to dismiss 526
the jury for the weekend and to respond to their questions on Monday morning. 527

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The Judge called the jury into the courtroom, read aloud the jury’s note, and 528
gave the jury additional instructions. Those instructions included the following 529
language: “I believe that on Monday, after you’ve had a restful weekend and are 530
given instructions by me, when you retire into the jury deliberation room and 531
you give each other fair and full consideration, you will be able to arrive at a just 532
verdict.” (Trial Tr. 692) The Court also told the jury: “you should not feel any 533
pressure of time in reaching your verdict. You should listen to each other’s 534
views and work as diligently as you can to arrive at a unanimous verdict.” (Trial 535
Tr. 692) 536
The parties do not dispute that this instruction was a modified Allen 537
charge. The defining characteristic of an Allen charge is that “it asks jurors to 538
reexamine their own views and the views of others.” Spears, 459 F.3d at 204 n.3. 539
An Allen charge is unconstitutional if it is coercive in the context and 540
circumstances under which it is given. Id. at 205. 541
This Court has previously explained the history of the Allen charge: 542
In Allen, the Supreme Court approved of supplemental instructions 543
given to a deadlocked jury urging them to continue deliberating and 544
for the jurors in the minority to listen to the majority’s arguments 545

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and ask themselves whether their own views were reasonable under 546
the circumstances. The instructions in Allen included statements 547
directing that “the verdict must be the verdict of each individual 548
juror, and not a mere acquiescence in the conclusion of his fellows,” 549
and that it was the jury's duty “to decide the case if they could 550
conscientiously do so.” These statements served to remind jurors in 551
the minority that a verdict was not required, and that no juror 552
should surrender the juror’s conscientiously held views for the sake 553
of rendering a verdict. 554
555
Id. at 204-05. 556
The original Allen charge has been criticized because it focused on the 557
suggestion that jurors in the minority should reconsider their position. In more 558
recent times, courts have tended to use charges that do not contrast the majority 559
and minority positions, but ask all jurors to re-examine their own views and the 560
views of others. Id. at 204 n.4. 561
In Spears, this Court accepted the parties’ representations that the Judge 562
had given a modified Allen charge and applied the standard developed in 563
Lowenfield v. Phelps, 484 U.S. 231 (1988), to determine whether that charge was 564
coercive. Lowenfield requires the Court to evaluate “the potential coercive effect 565
of a charge to a deadlocked jury . . . in its context and under all the 566
circumstances.” Spears, 459 F.3d at 205 (quoting Lowenfield, 484 U.S. at 237) 567

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(internal quotation marks omitted); see United States v. Vargas-Cordon, No. 11- 568
5165, 2013 WL 4046274, at *7 (2d Cir. Aug. 12, 2013). This Court observed that 569
“when an Allen charge directs jurors to consider the views of other jurors, 570
specific cautionary language reminding jurors not to abandon their own 571
conscientious beliefs is generally required.” Spears, 459 F.3d at 205; see Smalls v. 572
Batista, 191 F.3d 272, 279 (2d Cir. 1999) (“[A] necessary component of any Allen- 573
type charge requires the trial judge to admonish the jurors not to surrender their 574
own conscientiously held beliefs.”). 575
Evaluating the charge in Spears in the circumstances and the context in 576
which it was given, this Court found that the modified Allen charge was not 577
coercive. “The charge asked the jurors to consider the facts ‘with an attempt to 578
reach a verdict if that be possible,’ and to continue deliberations ‘with a view 579
toward arriving at a verdict if that’s possible.’” Spears, 459 F.3d at 206. 580
Although the trial court had failed to include the admonition not to give up 581
conscientiously held beliefs, “the charge did not urge the jurors to listen to the 582
views of other jurors with whom they disagreed or attempt to persuade each 583
other,” and “the original charge, given to the jury earlier that day, did include 584

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32
cautionary language telling jurors that they had a right to stick to their 585
arguments and stand up for their own strong opinions.” Id. This Court also 586
found it significant that defense counsel did not object to the charge. Id. 587
Moreover, following the Allen charge, the jury continued to deliberate for the 588
rest of the day and ultimately could not reach a verdict with respect to one of the 589
defendants. Id. at 207. This Court reasoned, “[t]his result strongly indicates that 590
individual attention was given to each defendant as to each count, and that the 591
charge did not cause jurors to surrender their opinions merely to reach a result.” 592
Id. (quoting United States v. Fermin, 32 F.3d 674, 680 (2d Cir. 1994), overruled on 593
other grounds by Bailey v. United States, 516 U.S. 137 (1995)) (internal quotation 594
marks omitted). 595
The issue in this case is whether the modified Allen charge given at the 596
end of the day was coercive in the circumstances and context in which it was 597
given. The Court was aware that the jury was deadlocked, and the Court had 598
already given a modified Allen charge. The jury had continued to deliberate and 599
asked for instructions on reasonable doubt and the absence of evidence. 600
Repeating a modified Allen charge at this time, without a request from the jury, 601

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could reasonably be perceived by the jurors as the Court communicating its 602
insistence on the jury reaching a unanimous verdict. See United States v. 603
Ruggiero, 928 F.2d 1289, 1299 (2d Cir. 1991) (finding that a repeated Allen charge 604
is not “inevitably” coercive and noting that both instructions included cautionary 605
language counseling jurors not to surrender conscientiously held views); see also 606
United States v. Barone, 114 F.3d 1284, 1305 (1st Cir. 1997) (“[C]aution needs to 607
be used before the modified Allen charge is given for a second time.”). 608
The Allen charge at issue encouraged the jurors to exchange views with 609
one another, consider each other’s views, and work diligently to reach a verdict, 610
but did not contain the admonition not to give up conscientiously held beliefs. 611
The charge did more than simply advise jurors to continue their deliberations. 612
Unlike the charge in Spears, the charge in this case did not suggest that failing to 613
reach a unanimous verdict was permissible. To the contrary, the Court stated 614
that it “believe[d]” that the jury would “arrive at a just verdict” on Monday. 615
(Trial Tr. 692) 616
A reasonable juror could view this instruction as lending the Court’s 617
authority to the incorrect and coercive proposition that the only just result was a 618

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34
verdict. However, a verdict is just only if it represents the conscientiously held 619
beliefs of all jurors. Under these circumstances, the Court should have given the 620
balancing, cautionary instruction that no juror should give up conscientiously 621
held beliefs. See Smalls, 191 F.3d at 278. 622
The failure to give such a cautionary instruction was coercive in these 623
circumstances although there are some factors that argue against concluding that 624
the modified Allen charge given at the end of the day was coercive under all the 625
circumstances: the previous Allen charge had included cautionary language; 626
defense counsel did not find the charge sufficiently coercive to object; and the 627
jury deliberated for about four and a half hours on the following Monday after 628
the weekend break before reaching a verdict. It is unnecessary to decide whether 629
these factors were sufficient to overcome the coercive aspects of the modified 630
Allen charge. The Court should have refrained from giving an unsolicited 631
modified Allen charge or, at the very least, should have included the balancing, 632
cautionary language. The defective charge can be considered in determining the 633
fairness of the trial, particularly given that the jurors expressed difficulty in 634
reaching a unanimous verdict. 635

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35
II. 636
The defendant argues that her conviction should be vacated because of 637
numerous evidentiary errors. It is only necessary to deal with two such errors 638
that may be relevant on remand. We find that Officer Rabideau’s testimony 639
about how the fuel tank functions and Agent Linstad’s testimony on the ultimate 640
issue of whether the defendant knew she possessed drugs were erroneously 641
admitted at trial. 642
643
A. 644
The defendant argues that the Court admitted the lay opinion testimony of 645
Officer Rabideau regarding how the fuel tank in the rental car functions in 646
violation of Federal Rule of Evidence 701 because that testimony was based on 647
specialized knowledge. The defendant argues that the admission of this 648
testimony prejudiced her because she did not have the opportunity to present a 649
rebuttal expert or to prepare to cross-examine Officer Rabideau on the technical 650
subject of how the fuel tank operates. The testimony was important to the 651
Government’s case because it supported the Government’s argument that the 652

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36
fuel gauge must have been showing “empty” throughout the trip from Canada 653
and that the defendant was not being truthful when she explained that she only 654
saw the warning light shortly before reaching the border. 655
Federal Rule of Evidence 701 limits lay witness testimony to testimony that 656
is “(a) rationally based on the witness’s perception; (b) helpful to clearly 657
understanding the witness’s testimony or to determining a fact in issue; and (c) 658
not based on scientific, technical, or other specialized knowledge within the 659
scope of Rule 702.” Fed. R. Evid. 701. Under Federal Rule of Evidence 701, “lay 660
opinion must be the product of reasoning processes familiar to the average 661
person in everyday life.” United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005). 662
This rule “prevent[s] a party from conflating expert and lay opinion testimony 663
thereby conferring an aura of expertise on a witness without satisfying the 664
reliability standard for expert testimony set forth in Rule 702 and the pre-trial 665
disclosure requirements set forth in Fed. R. Crim. P. 16 . . . .” Id. 666
The defendant argues that the testimony at issue was not rationally based 667
on Officer Rabideau’s perceptions, but on expert or specialized knowledge. The 668
relevant portion of Officer Rabideau’s testimony is as follows: 669

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On the outside of this cylinder, there’s a float and that’s -– the float is 670
what shows that the gas level, so as the float goes down, the gas 671
level in the vehicle obviously goes down. So, when the drugs were 672
placed and the float was pushed to the bottom, drugs holding that to 673
the bottom would always read zero kilometers to empty. That 674
would always be on empty. 675
676
(Trial Tr. 287-88) Officer Rabideau also testified that he had not been to 677
“mechanic school,” but had “looked in the gas tank prior to this,” and that his 678
experience investigating other cars at the border served as a basis for his 679
knowledge of how the fuel tank functions. (Trial Tr. 309) 680
If the opinion of a witness “rests in any way upon scientific, technical, or 681
other specialized knowledge, its admissibility must be determined by reference 682
to Rule 702, not Rule 701” because “lay opinion must be the product of reasoning 683
processes familiar to the average person in everyday life.” Garcia, 413 F.3d at 684
215 (internal quotation marks and citation omitted). Accordingly, this Court has 685
held that “the foundation requirements of Rule 701 do not permit a law 686
enforcement agent to testify to an opinion so based and formed if the agent’s 687
reasoning process depended, in whole or in part, on [the agent’s] specialized 688
training and experience.” Id. at 216. 689

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38
Officer Rabideau’s testimony was improperly admitted over the 690
defendant’s objection because his opinion was based on specialized training and 691
experience. Officer Rabideau did more than simply describe what he found in 692
the gas tank and what he perceived. He described how the float on the outside 693
of the gas tank worked and why the gas gauge would have registered zero to 694
empty while the drugs were in the gas tank. As the Government concedes, this 695
testimony was based on knowledge that Officer Rabideau acquired inspecting 696
other cars at the border. That he did not attend “mechanic school” does not 697
render his testimony admissible under Federal Rule of Evidence 701. Officer 698
Rabideau acquired his knowledge of how a fuel tank operates through his 699
experience as a border agent inspecting vehicles, not through the reasoning 700
processes of the average person. Therefore, the admission of this testimony was 701
error. 702
703
B. 704
The defendant argues that it was error to permit Agent Linstad to testify to 705
the ultimate issue of the defendant’s knowledge of drugs in the car in violation of 706

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Federal Rule of Evidence 704. Federal Rule of Evidence 704(b) provides: “In a 707
criminal case, an expert witness must not state an opinion about whether the 708
defendant did or did not have a mental state or condition that constitutes an 709
element of the crime charged or of a defense. Those matters are for the trier of 710
fact alone.” Fed. R. Evid. 704(b). The defendant argues that the admission of 711
Agent Linstad’s testimony that the defendant “realized” narcotics were in the 712
rental car was improper expert testimony on the ultimate issue of the defendant’s 713
knowledge of whether there were drugs in the rental car, which was a critical 714
element of the charges against the defendant. (Trial Tr. 589) 715
It is well established that Rule 704(b) “disables even an expert from 716
expressly stating the final conclusion or inference as to a defendant’s actual 717
mental state at the time of a crime.” United States v. DiDomenico, 985 F.2d 1159, 718
1164 (2d Cir. 1993) (internal quotation marks and citations omitted). Such 719
testimony is prohibited because it “poses a uniquely heightened danger of 720
intruding on the jury’s function.” Id.; see id. at 1164-65 (collecting cases). 721
Agent Linstad’s testimony regarding whether the defendant “realized” 722
that there were drugs in the car was erroneously admitted because it is expert 723

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testimony about the defendant’s state of mind. Indeed, whether the defendant 724
“realized” that there were drugs in the car was the key issue in this case. 725
Moreover, Agent Linstad used the opportunity to summarize some of the 726
Government’s evidence as to why the defendant must have known that she was 727
transporting drugs, which included the defendant’s inconsistent statements, the 728
strong odor of gasoline, the fuel light, and the presence of masking agents. The 729
Court had previously warned the parties that it would not permit such testimony 730
about the defendant’s knowledge, but when it was actually introduced, the 731
Court erroneously failed to strike it. The admission of this testimony at trial was 732
plain error. See United States v. Dukagjini, 326 F.3d 45, 55 (2d Cir. 2002) (finding 733
error where a case agent certified as an expert “acted at times as a summary 734
prosecution witness[, with] the effect [of] . . . bolstering . . . the testimony” of 735
other witnesses and “impinging upon the exclusive function of the jury”). 736
737
III. 738
The defendant argues that her conviction should be reversed because her 739
counsel provided constitutionally ineffective assistance at trial. To succeed on an 740

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41
ineffective assistance of counsel claim, a defendant must demonstrate that 741
counsel’s choices were not strategic because they “were outside the wide range 742
of professionally competent assistance,” and “that there is a reasonable 743
probability that, but for counsel's unprofessional errors, the result of the 744
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 745
690, 694 (1984). However, a cold trial record usually “will not disclose the facts 746
necessary to decide either prong of the Strickland analysis.” Massaro v. United 747
States, 538 U.S. 500, 505 (2003). Therefore, “in most cases a motion brought 748
under § 2255 is preferable to direct appeal for deciding claims of ineffective 749
assistance.” Id. at 504. 750
When a defendant raises a claim of ineffective assistance of trial counsel, 751
this Court may (i) decline to hear the claim and permit the defendant to raise the 752
claim as part of a subsequent motion filed pursuant to 28 U.S.C. § 2555; (ii) 753
remand the claim to the District Court for fact-finding; or (iii) decide the claim 754
based on the record before it. United States v. Doe, 365 F.3d 150, 152 (2d Cir. 755
2004). In this case, it is unnecessary to reach the merits of the ineffective 756
assistance of counsel claim because the conviction must be vacated on other 757

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grounds. Moreover, because the conviction is being vacated there will be no 758
occasion for a section 2255 motion. Therefore, we decline to reach the 759
defendant’s claim of ineffective assistance of trial counsel. 760
761
IV. 762
This trial was marred by significant errors, including: trying the defendant 763
in shackles without a finding of necessity on the record; failing to investigate 764
alleged juror misconduct; and providing an improper Allen charge to the jury. 765
There were also serious evidentiary errors, in particular the improper admission 766
of lay opinion testimony and the failure to strike expert testimony regarding the 767
defendant’s realization that there were drugs in her rental car. These errors 768
occurred in the context of a short trial in which the evidence was introduced in 769
less than three days. This was a close case that prompted approximately eight 770
hours of jury deliberations and a jury note asking for help because the jury was 771
hopelessly deadlocked. It was only after the Judge instructed the jury that the 772
Court “believe[d]” that they would reach a verdict that the jury did just that. 773

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Individually, these errors may not provide a basis for vacating the 774
defendant’s conviction. However, when considered together, in the context of 775
this trial, these errors call into serious doubt whether the defendant received the 776
due process guarantee of fundamental fairness to which she and all criminal 777
defendants are entitled. See Taylor v. Kentucky, 436 U.S. 478, 487 n.15 (1978); 778
see, e.g., United States v. Al-Moayad, 545 F.3d 139, 178 (2d Cir. 2008); United 779
States v. Guglielmini, 384 F.2d 602, 607 (2d Cir. 1967). Therefore, we VACATE 780
the judgment of the District Court and REMAND for proceedings consistent 781
with this opinion. 782
783
784
CONCLUSION 785
We have considered all of the arguments of the parties. To the extent not 786
specifically addressed above, they are moot. For the reasons explained above, 787
we VACATE the judgment of the District Court and REMAND for proceedings 788
consistent with this opinion. 789

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