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December 19, 2019

Split Second Circuit panel grants feds request for mandamus to preclude a jury nullification instruction in child porn case involving 15-year mandatory minimum

A helpful reader made sure I did not miss this How Appealing post flagging the fascinating split Second Circuit panel ruling yesterday in US v. Manzano, No. 18-3430 (2d Cir. Dec. 18, 2019) (available here).  The start of the majority opinion sets forth the basics:

Respondent Yehudi Manzano stands charged with production of child pornography, an offense punishable by a mandatory minimum term of fifteen years’ imprisonment, and transportation of child pornography, which is punishable by a mandatory minimum term of five years’ imprisonment.  Shortly before trial, he filed motions requesting permission to argue for jury nullification — in essence, that the jury should render a verdict not in accordance with the law — and to present evidence regarding the sentencing consequences of a conviction in this case.  On the eve of trial, the district court (Underhill, Chief Judge) granted Manzano’s request to argue jury nullification, but reserved decision on the admissibility of evidence regarding the sentencing consequences of a conviction.

The government now seeks a writ of mandamus directing the district court to (1) preclude defense counsel from arguing jury nullification, and (2) exclude any evidence of sentencing consequences at trial.  Applying settled law in this circuit, we hold that the government has a clear and indisputable right to a writ directing the district court to deny defense counsel’s motion for leave to argue jury nullification, and that the other conditions for mandamus relief are satisfied.  We further hold that, at this time, the government does not possess a clear and indisputable right to a writ directing the district court to exclude any evidence of sentencing consequences.

Here is the start of Judge Barrington Parker's partial dissent:

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

There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent.  The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted.  But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back.  I believe that most conscientious jurists would have done the same.  I have no difficulty concluding that Judge Underhill was right to do so.  “[F]ederal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts.”  United States v. Johnson, 221 F.3d 83, 96 (2d Cir. 2000) (quoting Daye v. Attorney Gen., 712 F.2d 1566, 1571 (2d Cir. 1983)).  They should use these powers “to see that the waters of justice are not polluted” and “to protect the integrity of the federal courts.” United States v. Payner, 447 U.S. 727, 744 (1980); accord United States v. HSBC Bank USA, N.A., 863 F.3d 125, 135 (2d Cir. 2017).  Their supervisory powers are not restricted to the protection of explicit constitutional rights.  McNabb v. United States, 318 U.S. 332, 341 (1943).  The powers exist “in order to maintain respect for law” and to “promote confidence in the administration of justice.”  Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting); accord Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974); United States v. Getto, 729 F.3d 221, 229 (2d Cir. 2013).  The supervisory powers should be sparingly exercised.  HSBC, 863 F.3d at 136.  Judges are not, of course, free to disregard the limitations of the law they are charged with enforcing under the guise of exercising supervisory powers or at other times.  Payner, 447 U.S. at 737.  But since Payner, we have recognized that within their supervisory powers, courts should “not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standards of fairness.” Johnson, 221 F.3d at 96 (quoting United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999)). This requirement applies with particular force in contexts such as charging and sentencing, especially those involving mandatory minimum sentences, where the Government plays an “often decisive role.” Id.

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

This local article about the ruling reports that the defendant's lawyer is going to seek en banc review. I am not optimistic the full Second Circuit will take up this matter or resolve it different, but I would like to see these issues get a lot more attention particularly in light of recent Sixth Amendment jurisprudence.  Notably, in the recent Haymond case, Justice Gorsuch spoke broadly about the Framers' vision of the jury right and explained: "Just as the right to vote sought to preserve the people's authority over their government's executive and legislative functions, the right to a jury trial sought to preserve the people's authority over its judicial functions." But how can the people have authority over the judicial function if they are not fully informed of their rights and authority as jurors and not made aware of the possible consequences of their decisions?

December 19, 2019 at 01:01 PM | Permalink


The idea that jurors are not supposed to know about nullification pisses me off. If a prosecutor is aware of the sentencing consequences of his decisions and also has the right to effectively nullify by not bringing certain charges, jurors should have the same information. The idea that they have the power to do this, but aren't allowed to know anything about it, really pisses me off.

Posted by: William C Jockusch | Dec 20, 2019 7:37:09 PM

I feel strongly that a jury should understand as part of its Power just exactly what a consequence in terms of a Guilty finding will have. The absence of this information could very easily set a different tone in the Jury Process. Having sat as foreman on three juries in my life, I am aware of the fact that in a criminal process, there is no information regarding the impact in terms of jail time a finding of guilty could represent. The instructions from a Judge are specific and do not allow for any indication of the potential for Nullification. If such power is given to a Jury, shouldn't that same power extent the opportunity for Nullification. If our judgement as Jurists is to be taken so very seriously, shouldn't our Judgement extend to the understanding of the IMPACT of our finding of perhaps a Guilty Verdict and its impact? Moreover, should we not as well be able to Judge a persons' action in totality? Furthermore, to be able to craft a discussion of sentencing impact versus the actions of the individual? As well, to understand that a guilty verdict will expose a person to a particular Mandatory Minimum? This is never known. I think if this were known it would enable far more Jurists to be guided by much more than just an analysis of guilty or innocent. Perhaps to find a person Guilty, but a disagreement as to the appropriate punishment outside of a mandatory minimum. Jurists need to have EVERY fact available in their determination. Absent this is a clear dis-service to Due Process.

Posted by: Tony Price | Dec 21, 2019 1:07:24 PM

Defense attorneys definitely aren't allowed to tell the jury about mandatory minimums, and by extension presumably aren't allowed to openly use jury nullification as part of their defense. I mean, if you're arguing jury nullification in a child porn case, you implicitly are arguing that the mandatory minimums for federal child pornography cases are way too high.

In the days of the internet, there's a pretty good chance the jurors will find out the mandatory minimum on their own anyway. One juror can easily do a quick google search, learn that production of child pornography (which at least in theory could be a 14 year old taking a picture of themselves) carries a 15 year mandatory minimum, and tell the other jurors. And then they might annul.

Like it or not, the legal system is supposed to pretend that jury nullification doesn't exist.

Posted by: dan jacobs | May 8, 2020 3:29:48 PM

@Tony Price Were you the jury foreman before the internet? In the internet days, it's pretty easy for the jury to look up for themselves what the punishments for crimes are. They just aren't allowed to be told the potential punishments by the defense.

It is a bit of a bind if you're having to decide between acquitting the guy and giving him 15 years. Not sure I can blame a jury, no matter what decision they make.

Posted by: dan jacobs | May 8, 2020 3:36:48 PM

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