u.s. v. Autumn Jackson

• Citation: 196 F.3d 383
• Decision Date: 12 July 1999
• Docket Number: Nos. 97-1711,s. 97-1711
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. AUTUMN JACKSON, BORIS SABAS, also known as Boris Shmulevich, and JOSE MEDINA, also known as Yosi Medina, Defendants-Appellants. (L), 97-1721, 98-1171 Petition for Rehearing Filed:
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 383

196 F.3d 383 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. AUTUMN JACKSON, BORIS SABAS, also known as Boris Shmulevich, and JOSE MEDINA, also known as Yosi Medina, Defendants-Appellants.

Nos. 97-1711(L), 97-1721, 98-1171

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Petition for Rehearing Filed: July 12, 1999

Final Briefs Filed: August 20, 1999

November 15, 1999, Decided

Before: WINTER, Chief Judge, VAN GRAAFEILAND and KEARSE, Circuit Judge.

KEARSE, Circuit Judge:

By opinion filed on June 9, 1999, reported at 180 F.3d 55, this Court vacated judgments convicting defendants Autumn Jackson and Jose Medina of threatening to injure another person's reputation with the intent to extort money, in violation of 18 U.S.C. 875(d) and 2 (1994), and convicting Jackson, Medina, and defendant Boris Sabas of conspiring to commit extortion, in violation of 18 U.S.C. 371 (1994), and traveling across state lines to promote extortion, in violation of the Travel Act, 18 U.S.C. 1952(a)(3) and 2 (1994). As discussed below, we concluded that the district court had erred in failing to instruct the jury on an essential element of the 875(d) offense and that that error also infected the Travel Act and conspiracy convictions. The government has timely petitioned for rehearing, arguing, on the basis of Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999), handed down by the Supreme Court on June 10, 1999, that harmless-error analysis applies to a trial court's failure to instruct on an element of the offense and that the failure in the present case was harmless. Defendants, in response to the government's petition, contend that Neder is distinguishable from the present case for procedural reasons and that, in any event, the instructional error here cannot be considered harmless.

We note that, if pertinent, the decision in Neder, though rendered one day after our opinion, is to be applied to this appeal since "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final . . . ." Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987). Our decision is not final, for these purposes, until the time to petition this Court for rehearing has expired and the time to petition the United States Supreme Court for certiorari has expired. See generally Allen v. Hardy, 478 U.S. 255, 258 n.1, 92 L. Ed. 2d 199, 106 S. Ct. 2878 (1986) (per curiam).

For the reasons that follow, we conclude that the principles enunciated in Neder are applicable here, and that application of its harmless-error test requires affirmance of the convictions.

A. The Neder Principles

In Neder, the defendant was convicted of, inter alia, making materially false statements in his income tax returns in violation of 26 U.S.C. 7206(1), by failing to report a total of $ 5 million in profits he obtained from fraudulent real estate loans. His trial was conducted prior to the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 132 L. Ed. 2d 444, 115 S. Ct. 2310 (1995), which established that the materiality issue must be submitted to the jury rather than being decided by the court; in Neder, the district court itself decided that Neder's failure to report was material. Thus, "over Neder's objection, the District Court instructed the jury that, to convict on the tax offenses, it 'need not consider' the materiality of any false statements 'even though that language is used in the indictment.' . . . The question of materiality, the court instructed, 'is not a question for the jury to decide.'" Neder, 119 S. Ct. at 1832 (quoting district court record).

The Supreme Court in Neder held that the trial court's failure to instruct the jury on the element of materiality was harmless error. First, the Court concluded that a failure to submit an element of the offense to the jury is a type of error that is susceptible to harmless-error analysis:

[A] jury instruction that omits an element of the offense [ ] differs markedly from the constitutional violations we have found to defy harmless-error review. Those cases, we have explained, contain a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." [Arizona v.] Fulminante, [499 U.S. 279, 310, 111 S. Ct. 1246 113 L. Ed. 2d 302 (1991)]. Such errors "infect the entire trial process," Brecht v. Abrahamson, 507 U.S. 619, 630, 123 L. Ed. 2d 353, 113 S. Ct. 1710 . . . (1993), and "necessarily render a trial fundamentally unfair," Rose[ v. Clark, 478 U.S. 570, 577, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986)]. . . .

Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.

Neder, 119 S. Ct. at 1833. Although noting that such an error "precludes the jury from making a finding on the actual element of the offense," id at 1834, the Court concluded that it is not "so intrinsically harmful as to require automatic reversal . . . without regard to [its] effect on the outcome," id. at 1833.

Next, pointing out that "in general, a false statement is material if it has a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed," id. at 1837 (internal quotation marks omitted), the Court observed that the evidence of the materiality of Neder's misrepresentations was overwhelming and was indeed unchallenged by Neder:

At trial, the Government introduced evidence that Neder failed to report over $ 5 million in income from the loans he obtained. The failure to report such substantial income incontrovertibly establishes that Neder's false statements were material to a determination of his income-tax liability. The evidence supporting materiality was so overwhelming, in fact, that Neder did not argue to the jury--and does not argue here--that his false statements of income could be found immaterial.

Id. at 1837. The Court concluded that the error in Neder's case was harmless because there could be no reasonable doubt that it did not affect the verdict:

In this situation, where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. We think it beyond cavil here that the error "did not contribute to the verdict obtained." Chapman [v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967)].

Neder, 119 S. Ct. at 1837.

The erroneous admission of evidence in violation of the Fifth Amendment's guarantee against self-incrimination, see Arizona v. Fulminante, 499 U.S. 279, 113 L. Ed. 2d 302, 111 S. Ct. 1246 . . . (1991), and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment, see Delaware v. Van Arsdall, [475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986)], are both subject to harmless-error analysis under our cases. Such errors, no less than the failure to instruct on an element in violation of the right to a jury trial, infringe upon the jury's factfinding role and affect the jury's deliberative process in ways that are, strictly speaking, not readily calculable. We think, therefore, that the harmless-error inquiry must be essentially the same: Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error? . . . .

We believe that where an omitted element is supported by uncontroverted evidence, this approach reaches an appropriate balance between "society's interest in punishing the guilty [and] the method by which decisions of guilt are made." Connecticut v. Johnson, 460 U.S. [73, 86, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983)] (plurality opinion) . . . . In a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.

Neder, 119 S. Ct. at 1838.

Finally, the Court indicated that if the evidence supporting the omitted element was controverted, harmless-error analysis requires the appellate court to conduct a two-part inquiry, searching the record in order to determine (a) whether there was sufficient evidence to permit a jury to find in favor of the defendant on the omitted element, and, if there was, (b) whether the jury would nonetheless have returned the same verdict of guilty. The reviewing court,

in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is "no,"

the error is harmless. Neder, 119 S. Ct. at 1839 (emphasis added). If "the defendant contested the omitted element and raised evidence sufficient to support a contrary finding," then

safeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error . . . it should not find the error harmless.

Id. at 1838 (emphasis added).

In sum, Neder instructs that erroneously omits an element of the offense, we should begin by asking whether the evidence in the record could rationally lead to a finding favoring the defendant on the omitted element. If the answer to that legal question is "no," we should conclude that the error was harmless. If the answer is "yes," we must...