United States v. Manzano (In re United States), Docket No. 18-3430

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Richard J. Sullivan, Circuit Judge
• Citation: 945 F.3d 616
• Parties: IN RE: UNITED STATES of America, United States of America, Petitioner, v. Yehudi Manzano, Respondent.
• Docket Number: August Term 2018,Docket No. 18-3430
• Decision Date: 18 December 2019

945 F.3d 616

IN RE: UNITED STATES of America,

United States of America, Petitioner,
v.
Yehudi Manzano, Respondent.

Docket No. 18-3430
August Term 2018

United States Court of Appeals, Second Circuit.

Argued: February 13, 2019
Decided: December 18, 2019

SANDRA S. GLOVER, Assistant United States Attorney (Sarah P. Karwan, Neeraj Patel, Assistant United States Attorneys, on the brief), for John H. Durham, United States Attorney for the District of Connecticut, New Haven, CT, for Petitioner.

NORMAN A. PATTIS, Pattis & Smith, LLC, New Haven, CT, for Respondent.

JOHN GLEESON (Pooja A. Boisture, Nathan S. Richards, on the brief), Debevoise & Plimpton LLP, New York, NY, for Amicus Curiae The Honorable Stefan R. Underhill.

Clark M. Neily III, Jay R. Schweikert, Cato Institute, Washington, D.C., counsel of record, Mary Price, FAMM Foundation, Washington, D.C., Peter Goldberger, Ardmore, PA, Joel B. Rudin, National Association of Criminal Defense Lawyers, New York, NY, for Amici Curiae Cato Institute, FAMM Foundation, and National Association of Criminal Defense Lawyers. Timothy Lynch, The Fully Informed Jury Association, Helena, MT, for Amicus Curiae The Fully Informed Jury Association.

Before: Parker, Chin, and Sullivan, Circuit Judges.

Judge Parker concurs in part and dissents in part in a separate opinion.

Richard J. Sullivan, Circuit Judge:

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.

Accordingly, we grant in part and deny in part the government's petition.

I. BACKGROUND

945 F.3d 621

A. Facts¹

In October 2016, law enforcement officers in Connecticut received information that a 15-year-old girl, M.M., had been in a sexual relationship with Yehudi Manzano, the 31-one-year-old landlord of the building where she lived. During the ensuing state investigation, officers searched Manzano's cell phone pursuant to a warrant and discovered a video of M.M. and Manzano engaged in sexually explicit conduct.

M.M. knew that Manzano was recording the video at the time, and Manzano did not threaten her or force her to engage in the sexual conduct. Nonetheless, M.M. was 15 years old when the video was recorded and therefore was incapable of consenting to sexual conduct as a matter of law. See Conn. Gen. Stat. § 53a-71(a)(1). Although Manzano did not distribute the video, he uploaded it, using internet servers located outside of Connecticut, to his personal Google Photos folder.

B. District Court Proceedings

In May 2018, a grand jury sitting in Connecticut returned an indictment charging Manzano with one count of production of child pornography, in violation of 18 U.S.C. § 2251(a), and one count of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1). The production count is punishable by a mandatory minimum term of fifteen years' imprisonment, 18 U.S.C. § 2251(e), while the transportation count is punishable by a mandatory minimum term of five years' imprisonment, id. § 2252A(b)(1). The district court set a trial date of October 29, 2018.

On October 1, 2018, Manzano filed a pretrial "Motion to Permit Counsel to Argue Jury Nullification" in which he sought "permission to make the jury aware of the penalty, and to argue that the [g]overnment's application of the law to the particular facts of this case is an obscene miscarriage of justice." United States v. Manzano , No. 18-cr-95 (SRU) (D. Conn. Oct. 1, 2018), ECF No. ("Doc. No.") 30. In support of these requests, Manzano argued that "[b]ut for [M.M.'s] age, the contact was consensual," and "[b]ut for the fact that his telephone was seized pursuant to a warrant, no one would ever have had access to the film." Id. Manzano acknowledged that the government "may well be able to prove the elements of the [production] offense," but he insisted that "the conduct at issue here, while perhaps not innocent, [was] in no way so sinister as to warrant" the fifteen-year mandatory minimum penalty. Id.

On October 11, 2018, the government filed its opposition to Manzano's motion and requested that defense counsel "be precluded, through a jury address, witness examination, or offer of evidence, from informing the jury about the sentencing consequences or suggesting to the jury that they may acquit if they find the [g]overnment's prosecution or the sentencing consequences are unjust." Doc. No. 36 at 7. The government renewed that request in its motions in limine , filed October 23, 2018, which sought "to preclude evidence and/or argument of the propriety of the [g]overnment's prosecution." Doc. No. 45 at 9–10.

On October 25, 2018, with trial set to begin in four days, the district court held a pretrial conference at which it reserved decision on the government's motion. The next day, Manzano requested that the court rule on his still pending "request to argue jury nullification and to present evidence

945 F.3d 622

of the sentencing consequences of a conviction to the jury." Doc. No. 48 at 10.

On October 29, 2018, the day the trial was scheduled to begin, the district court held another pretrial conference at which it granted Manzano's motion to permit counsel to argue jury nullification, while reserving decision on the admissibility of evidence related to sentencing consequences. In explaining its ruling, the district court began by observing that "[t]his is a shocking case ... that calls for jury nullification."² Doc. No. 60 at 34. The court then ruled:

[T]he law precludes me from charging the jury, the law precludes me from encouraging the jury, and I don't intend to do that. But if evidence comes in about the length of sentence, or if [defense counsel] chooses to argue, I do not feel that I can preclude that. I don't feel I'm required to preclude that. And I think justice requires that I permit that. So it's not going to come from me, but I think justice cannot be done here if the jury is not informed, perhaps by [defense counsel], that that's the consequence here.

Id. at 34–35. The district court memorialized its ruling in a minute entry stating that "[Manzano's] motion is granted to the extent it seeks permission to argue for jury nullification." Doc. No. 58.

The government immediately filed an emergency motion to adjourn the trial while it sought permission from the Solicitor General's Office to file a petition for writ of mandamus in this court. At an emergency motion hearing held the same day, the district court granted the government's motion, dismissed the jury, and adjourned the trial pending our resolution of the government's petition. With respect to its jury nullification ruling, the district court also reiterated: "I simply am allowing [defense counsel] to argue as he chooses to argue. There is no doubt that juries have the power to nullify, and [defense counsel] intends to argue that they should." Doc. No. 62 at 4–5.

This petition for a writ of mandamus followed.

II. DISCUSSION

The common-law writ of mandamus is codified in the All Writs Act, which provides that federal courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a) ; Cheney v. U.S. Dist. Court , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). "The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine [the court against which mandamus is sought] to a lawful exercise of its prescribed jurisdiction." Cheney , 542 U.S. at 380, 124 S.Ct. 2576 (alteration in original) (quoting Roche v. Evaporated Milk Ass'n , 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943) ). Although courts have not subscribed to a "technical definition of ‘jurisdiction,’ " it is common ground that mandamus may lie only in "exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion." Id. (internal quotation marks and...