`
`Opinions of the United States Court of Appeals for the Second
`Circuit, In re United States, No. 18-3430 (Dec. 18, 2019)
`
`APP.1
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page1 of 31
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`18‐3430
`In re: United States of America
`
`
`
`United States Court of Appeals
`for the Second Circuit
`
`
`AUGUST TERM 2018
`
`
`
`Docket No. 18‐3430
`
`
`IN RE: UNITED STATES OF AMERICA,
`
`UNITED STATES OF AMERICA,
`
`Petitioner,
`
`
`
`v.
`
`
`
`YEHUDI MANZANO,
`
`Respondent.
`
`
`
`ARGUED: FEBRUARY 13, 2019
`
`DECIDED: DECEMBER 18, 2019
`
`
`
`Before:
`
`PARKER, CHIN, AND SULLIVAN, Circuit Judges.
`
`On the eve of trial, the United States District Court for the District of
`Connecticut (Underhill, Chief Judge) ruled that Respondent – who is charged with,
`
`APP.2
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page2 of 31
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`inter alia, production of child pornography, an offense punishable by a mandatory
`minimum term of fifteen years’ imprisonment – could argue jury nullification at
`trial. The district court also reserved decision on whether evidence of sentencing
`consequences would be admissible. The government now petitions for a writ of
`mandamus directing the district court to preclude defense counsel from arguing
`nullification and to exclude any evidence of sentencing consequences. We hold
`that the conditions for mandamus relief are satisfied with respect to the district
`court’s nullification ruling, but not with respect to the admissibility of evidence of
`sentencing consequences. Thus, we grant in part and deny in part the petition.
`Judge Parker concurs in part and dissents in part in a separate opinion.
`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,
`Foundation,
`Mary
`Price,
`FAMM
`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.
`
`2
`
`APP.3
`
`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page3 of 31
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`Timothy Lynch, The Fully Informed Jury
`Association, Helena, MT, for Amicus Curiae
`The Fully Informed Jury Association.
`
`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
`
`3
`
`APP.4
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page4 of 31
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`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
`
`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
`
`1 The following facts have not yet been admitted into evidence in the district court, but the parties
`do not dispute them for the limited purpose of our review of the government’s petition.
`4
`
`APP.5
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page5 of 31
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`of consenting to sexual conduct as a matter of law. See Conn. Gen. Stat. § 53a‐
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`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
`
`5
`
`APP.6
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page6 of 31
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`support of these requests, Manzano argued that “[b]ut for [M.M.’s] age, the contact
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`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
`
`6
`
`APP.7
`
`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page7 of 31
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`“request to argue jury nullification and to present evidence 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.
`
`2 More fully, the district court explained:
`This is a shocking case. This is a case that calls for jury nullification. . . . I am
`absolutely stunned that this case, with a 15‐year mandatory minimum, has been
`brought by the government. . . . I am going to be allowed no discretion at
`sentencing to consider the seriousness of this conduct or the lack or seriousness of
`this conduct, and it is extremely unfortunate that the power of the government has
`been used in this way, to what end I’m not sure.
`Doc. No. 60 at 34.
`
`7
`
`APP.8
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page8 of 31
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`Id. at 34–35. The district court memorialized its ruling in a minute entry stating
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`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 (2004). “The
`
`8
`
`APP.9
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page9 of 31
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`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
`
`(alteration in original) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26
`
`(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 citations omitted).
`
`“The writ is, of course, to be used sparingly.” Stein v. KPMG, LLP, 486 F.3d
`
`753, 760 (2d Cir. 2007). Thus, three demanding conditions must be satisfied before
`
`the writ may issue: (1) the petitioner must “have no other adequate means to
`
`attain the relief [it] desires;” (2) the petitioner must satisfy “the burden of showing
`
`that [its] right to issuance of the writ is clear and indisputable;” and (3) the issuing
`
`court “must be satisfied that the writ is appropriate under the circumstances.”
`
`Cheney, 542 U.S. at 380–81 (internal quotation marks and citations omitted).
`
`Here, the government petitions for a writ of mandamus directing the district
`
`court to (1) preclude defense counsel from arguing jury nullification at trial, and
`
`9
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`APP.10
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page10 of 31
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`(2) exclude any evidence regarding the applicable mandatory minimum sentences.
`
`Applying the framework set forth in Cheney, we consider each claim in turn.
`
`A. Jury Nullification
`
`1. Other Adequate Means to Obtain the Relief Sought
`
`
`
`To satisfy the first Cheney condition, a petitioner must show that it “ha[s] no
`
`other adequate means to attain the relief [it] desires.” Id. at 380. This requirement
`
`is generally unsatisfied where (1) the district court has not yet foreclosed the relief
`
`sought in the petition, see Kerr v. U.S. Dist. Court, 426 U.S. 394, 404–06 (1976); see
`
`also, e.g., Philip Morris Inc. v. Nat’l Asbestos Workers Med. Fund, 214 F.3d 132, 135 (2d
`
`Cir. 2000) (per curiam), or (2) the petitioner can obtain relief through the regular
`
`appeals process, see Cheney, 542 U.S. at 380–81.
`
`
`
`Appearing as amicus, Judge Underhill contends that his ruling permitting
`
`defense counsel to argue jury nullification did “‘not foreclose’ the relief the
`
`[g]overnment seeks” because it was contingent on later rulings of the court. Brief
`
`of the Honorable Stefan R. Underhill as Amicus Curiae at 14 (quoting Kerr, 426 U.S.
`
`at 404); see also, e.g., In re Cohn, 416 F.2d 440, 441 (2d Cir. 1969) (per curiam)
`
`(denying a petition for writ of mandamus where it was “clear that the district
`
`judge, in denying the application for adjournment [of trial], d[id] not view his
`
`
`
`10
`
`APP.11
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page11 of 31
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`action as being final”). In particular, Judge Underhill argues that his ruling was
`
`contingent on whether evidence of the applicable mandatory minimums would
`
`later be ruled admissible at trial. We are not persuaded.
`
`
`
`As an initial matter, Manzano did not seek permission to argue jury
`
`nullification only in the event he could introduce evidence of the mandatory
`
`minimums at trial. Rather, he filed a pretrial “Motion to Permit Counsel to Argue
`
`Jury Nullification,” which sought the court’s permission “both to inform the jury
`
`of the consequences of a conviction, and to argue to the jury that the law as applied
`
`[to] the particular facts of this case is . . . fundamentally unfair.” Doc. No. 30 at 2.
`
`Likewise, the government’s request to preclude defense counsel from arguing jury
`
`nullification was not predicated on the admissibility of evidence. In its opposition
`
`to Manzano’s motion, the government requested that counsel be precluded from
`
`arguing jury nullification “through a jury address, witness examination, or offer
`
`of evidence.” Doc. No. 36 at 7. The government’s motions in limine similarly
`
`sought “to preclude evidence and/or argument of the propriety of the
`
`[g]overnment’s prosecution.” Doc. No. 45 at 9–10 (emphasis added).
`
`
`
`The district court granted Manzano’s motion and denied the government’s
`
`corresponding request and motion in limine without any relevant qualification.
`
`
`
`11
`
`APP.12
`
`
`
`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page12 of 31
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`Although the district court recognized that evidence of the mandatory minimums
`
`was a basis for defense counsel’s jury nullification argument, the district court did
`
`not limit its ruling to that basis. Rather, the district court ruled: “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. . . . And I think justice requires that I permit that.” Doc.
`
`No. 60 at 34–35 (emphasis added). Consistent with this unambiguous statement,
`
`the district court memorialized its ruling in a minute entry that stated clearly and
`
`without any qualification that “[Manzano’s] motion is granted to the extent it seeks
`
`permission to argue for jury nullification.”3 Doc. No. 58. On this record, there can
`
`be no doubt that the district court granted defense counsel’s request to argue jury
`
`
`3 Our dissenting colleague points to the district court’s remark, made at a hearing held later the
`same day, that if “evidence of the mandatory minimum[s] . . . comes in as a matter of trial
`evidence, [defense counsel] is permitted to argue from that to the jury.” Doc. No. 62 at 6–7. That
`statement, however, came only after the district court had already ruled, and in any event, it was
`consistent with the court’s earlier observation that evidence of the mandatory minimums was one
`way in which defense counsel might attempt to argue nullification. Moreover, in the same
`hearing, the district court also stated that it was “simply allowing [defense counsel] to argue as
`he chooses to argue,” while recognizing that “juries have the power to nullify, and [defense
`counsel] intends to argue that they should.” Id. at 4–5.
`The dissent also relies in part on arguments advanced by Judge Underhill as amicus.
`
`Dissenting Op. at 16. While we have given due consideration to these arguments, which Judge
`Underhill permissibly raised through counsel in this mandamus proceeding, see Ligon v. City of
`New York, 736 F.3d 166, 171 & n.11 (2d Cir. 2013), ultimately we must ground our assessment of
`the proceedings below in the record rather than the parties’ briefs, see, e.g., Cross & Cross Properties,
`Ltd. v. Everett Allied Co., 886 F.2d 497, 505 (2d Cir. 1989).
`12
`
`
`
`APP.13
`
`
`
`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page13 of 31
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`nullification at trial, and that such a ruling was not contingent on later evidentiary
`
`rulings of the court.
`
`
`
`We also conclude that the ordinary appeals process would not afford the
`
`government an adequate means of obtaining the relief it seeks. See Cheney, 542
`
`U.S. at 380–81. The regular appeals process will be unavailable to the government
`
`if Manzano prevails at trial, because double jeopardy will have attached and the
`
`government will not be able to appeal the jury’s verdict of acquittal. See U.S. Const.
`
`amend. V; 18 U.S.C. § 3731; see also, e.g., United States v. Amante, 418 F.3d 220, 222
`
`(2d Cir. 2005). Conversely, “if the government were to secure a conviction, any
`
`appeal would be moot and any alleged error would necessarily be harmless.”
`
`Amante, 418 F.3d at 222. It is true, of course, that mandamus may not be invoked
`
`as a “substitute” for an interlocutory appeal – an uncontroversial rule that is made
`
`no “less compelling by the fact that the [g]overnment has no later right to appeal.”
`
`Will v. United States, 389 U.S. 90, 97 (1967) (internal quotation marks, citation, and
`
`ellipses omitted). Our precedents make it abundantly clear, however, that the
`
`government’s limited right of appeal in criminal cases is relevant to the mandamus
`
`inquiry. See, e.g., Amante, 418 F.3d at 222; In re United States, 903 F.2d 88, 89 (2d
`
`Cir. 1990); see also United States v. Sam Goody, Inc., 675 F.2d 17, 25 (2d Cir. 1982)
`
`
`
`13
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`APP.14
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page14 of 31
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`(discussing the rule stated in Will and recognizing that “[t]he writ thus is not to be
`
`granted merely because it is the only way in which the district court’s new‐trial
`
`order might be reviewed” (emphasis added)), superseded by statute on other grounds
`
`as stated in United States v. Hundley, 858 F.2d 58 (2d Cir. 1988); United States v.
`
`Weinstein, 511 F.2d 622, 627 (2d Cir. 1975) (granting a petition for writ of
`
`mandamus in part due to the “risk that the [g]overnment might be precluded on
`
`double jeopardy grounds from appealing”). Thus, the first Cheney condition is
`
`plainly satisfied. See Amante, 418 F.3d at 222; In re United States, 903 F.2d at 89.
`
`2. “Clear and Indisputable” Right to the Writ
`
`
`
`The second Cheney condition requires that a petitioner’s “right to issuance
`
`of the writ [be] ‘clear and indisputable.’” 542 U.S. at 381 (quoting Kerr, 426 U.S. at
`
`403). This condition is satisfied where a district court commits “a clear and
`
`indisputable abuse of its discretion,” that is, where the court clearly and
`
`indisputably “base[s] its ruling on an erroneous view of the law or on a clearly
`
`erroneous assessment of the evidence, or . . . render[s] a decision that cannot be
`
`located within the range of permissible decisions.” Linde v. Arab Bank, PLC, 706
`
`F.3d 92, 107 (2d Cir. 2013) (quoting SEC v. Rajaratnam, 622 F.3d 159, 171 (2d Cir.
`
`2010)).
`
`
`
`14
`
`APP.15
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page15 of 31
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`
`
`We focus here on the first form of abuse of discretion – a ruling based on an
`
`erroneous view of the law. The government contends that the district court clearly
`
`and indisputably based its ruling on the erroneous legal view that a defendant
`
`may, in certain circumstances, argue jury nullification. Manzano responds that
`
`the government’s right to a writ of mandamus is not clear and indisputable
`
`because no binding authority specifically prevents a district court from allowing
`
`counsel to argue jury nullification. The necessary implication of Manzano’s
`
`argument is that district courts have the discretion to allow jury nullification
`
`arguments in certain cases, and that the district court’s ruling in this case was not
`
`clearly outside the “range of permissible decisions.” Id.
`
`
`
`Manzano’s argument misperceives our mandamus standard. We have
`
`never required petitioners to point to binding authority directly on point in order
`
`to establish their entitlement to the writ. See, e.g., Stein, 486 F.3d at 760. Indeed,
`
`imposing such a requirement would mean casting aside one of the “touchstones”
`
`of mandamus review – the “presence of an issue of first impression.” Amante, 418
`
`F.3d at 222; see also Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964) (concluding that
`
`the Court of Appeals should have exercised its mandamus power over “issues of
`
`first impression” in order “to settle new and important problems”); infra at 22.
`
`
`
`15
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`APP.16
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page16 of 31
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`
`
`Thus, in determining whether a district court has clearly and indisputably
`
`based its ruling on a legal error, we do not confine our review to the narrow (and
`
`often empty) universe of binding cases directly on point. See, e.g., In re City of New
`
`York, 607 F.3d 923, 947 (2d Cir. 2010). Instead, as in any case, we may consider all
`
`relevant legal authorities. See, e.g., id.; see also, e.g., San Jose Mercury News, Inc. v.
`
`U.S. Dist. Court, 187 F.3d 1096, 1102 (9th Cir. 1999) (“While we have never squarely
`
`[answered the question presented in this mandamus petition], we conclude that
`
`the unbroken string of [analogous and out‐of‐circuit] authorities . . . leaves little
`
`doubt as to the answer.”). The ultimate question is simply whether, bearing in
`
`mind the exceptional nature of mandamus, we are left with the “firm conviction”
`
`that the district court’s view of the law was incorrect.4 In re Int’l Bus. Machines
`
`Corp., 687 F.2d 591, 600 (2d Cir. 1982); see also In re Cement Antitrust Litig. (MDL No.
`
`296), 688 F.2d 1297, 1305–07, 1306 n.6 (9th Cir. 1982) (adopting the “firm
`
`
`4 The dissent labels this formulation of the “clear and indisputable” requirement as “entirely ad
`hoc,” “generat[ing] chaos,” and amounting to no “justiciable standard.” Dissenting Op. at 20–21.
`But courts routinely apply this formulation in the mandamus context, see, e.g., In re Int’l Bus.
`Machines Corp., 687 F.2d 591, 600 (2d Cir. 1982); see also, e.g., In re Bryant, 745 F. App’x 215, 220 (5th
`Cir. 2018); In re United States, 884 F.3d 830, 836–37 (9th Cir. 2018); Waymo LLC v. Uber Techs., Inc.,
`870 F.3d 1350, 1359 (Fed. Cir. 2017); John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008), and of course
`this formulation of the clear‐error standard has been ubiquitous in the context of appellate review
`of factual findings since the Supreme Court first articulated it in United States v. United States
`Gypsum Co., 333 U.S. 364, 395 (1948); see also, e.g., United States v. Simmons, 661 F.3d 151, 155 (2d
`Cir. 2011) (“In order to [reverse for clear error], we must be left with the definite and firm
`conviction that a mistake has been committed.” (internal quotation marks and citation omitted)).
`16
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`
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`APP.17
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page17 of 31
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`conviction” standard for clear legal error in the mandamus context (citing Int’l Bus.
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`Machines, 687 F.2d at 599–603)), aff’d by an equally divided court sub nom. Arizona v.
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`U.S. Dist. Court, 459 U.S. 1191 (1983).
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`
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`In this case, we are left with the firm conviction that the district court based
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`its jury nullification ruling on an erroneous view of the law. Our case law is clear:
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`“it is not the proper role of courts to encourage nullification.” United States v.
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`Polouizzi, 564 F.3d 142, 162–63 (2d Cir. 2009). Rather, “the power of juries to
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`‘nullify’ or exercise a power of lenity is just that – a power; it is by no means a right
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`or something that a judge should encourage or permit if it is within his authority
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`to prevent.” United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997).
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`
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`Here, the district court in fact recognized that our case law “preclude[d] it
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`from encouraging the jury” to nullify, Doc. No. 60 at 34, but then proceeded to
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`draw an arbitrary distinction between encouraging the jury via jury instructions –
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`which it properly deemed impermissible – and granting defense counsel’s motion
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`to argue nullification. This distinction is unsupported by our case law.
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`
`
`In Thomas, we concluded that “a presiding judge possesses both the
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`responsibility and the authority to dismiss a juror whose refusal or unwillingness
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`to follow the applicable law becomes known to the judge during the course of
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`
`
`17
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`APP.18
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page18 of 31
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`trial.” 116 F.3d at 617. In reaching that conclusion, we explained in no uncertain
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`terms that “trial courts have the duty to forestall or prevent” jury nullification. Id.
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`at 616. Our reasoning was thus not limited to the specific facts at issue. Instead,
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`“tak[ing] th[e] occasion to restate some basic principles regarding the character of
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`our jury system,” we “categorically reject[ed] the idea that, in a society committed
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`to the rule of law, jury nullification is desirable or that courts may permit it to occur
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`when it is within their authority to prevent.” Id. at 614. We have since applied the
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`principles set forth in Thomas beyond the specific circumstances of that case, see,
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`e.g., Polouizzi, 564 F.3d at 162–63; United States v. Carr, 424 F.3d 213, 219–21 (2d Cir.
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`2005); United States v. Pabon‐Cruz, 391 F.3d 86, 95 (2d Cir. 2004), and we have no
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`hesitation doing so again here.
`
`
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`Applying the principles enunciated in Thomas, we emphatically reject the
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`rule, advanced by Judge Underhill as amicus, that district courts are free to permit
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`jury nullification arguments whenever they feel justice so requires – in other
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`words, in any case in which the court strongly disagrees with the government’s
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`charging decisions and the attendant sentencing consequences. As a practical
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`matter, there is no meaningful difference between a court’s knowing failure to
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`remove a juror intent on nullification, a court’s instruction to the jury that
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`
`
`18
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`APP.19
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page19 of 31
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`encourages nullification, and a court’s ruling that affirmatively permits counsel to
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`argue nullification. In each of these situations, the conduct in question subverts
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`the jury’s solemn duty to “take the law from the court, and apply that law to the
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`facts of the case as they find them to be from the evidence.” Sparf v. United States,
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`156 U.S. 51, 102 (1895); see United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983)
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`(“We therefore join with those courts which hold that defense counsel may not
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`argue jury nullification during closing argument.”); see also, e.g., United States v.
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`Gonzalez‐Perez, 778 F.3d 3, 18–19 (1st Cir. 2015); United States v. Dougherty, 473 F.2d
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`1113, 1130–37 (D.C. Cir. 1972). District courts have a duty to forestall or prevent
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`such conduct, see Thomas, 116 F.3d at 616, and the district court in this case
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`abdicated its duty by ruling that defense counsel could argue jury nullification.5
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`
`
`We have no doubt that in granting Manzano’s motion to argue for jury
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`nullification, Judge Underhill was acting under the sincere belief that his ruling
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`was consistent with, and perhaps mandated by, the ends of justice. Nevertheless,
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`individual judges, cloaked with the authority granted by Article III of the
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`Constitution, are not at liberty to impose their personal view of a just result in the
`
`
`5 Indeed, Judge Underhill’s statements that he thought this case “calls for jury nullification,” and
`that “justice cannot be done here if the jury is not informed, perhaps by [defense counsel],” of the
`sentencing consequences, Doc. No. 60 at 34–35, suggest not simply a ruling that actively permits
`nullification, but literal encouragement of jury nullification.
`19
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`
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`APP.20
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page20 of 31
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`face of a contrary rule of law. See Hart v. Massanari, 266 F.3d 1155, 1171, 1175 (9th
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`Cir. 2001) (“Judges of the inferior courts may voice their criticisms [of a law], but
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`follow it they must. . . . A district court bound by circuit authority, for example,
`
`has no choice but to follow it, even if convinced that such authority was wrongly
`
`decided.”); see also Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384
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`(2015) (“[O]nce a case or controversy properly comes before a court, judges are
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`bound by federal law.”). Nor are judges prosecutorial gatekeepers who may
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`override the government’s constitutional exercise of charging discretion in the
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`name of justice. See United States v. Batchelder, 442 U.S. 114, 124 (1979); United States
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`v. Lovasco, 431 U.S. 783, 790 (1977). Contrary to the dissent’s suggestion, the fact
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`that we might disagree with the government’s charging decision, or lack a full
`
`understanding of that decision, provides no basis for holding this matter in
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`abeyance and remanding so that the prosecutors can “revisit their charging
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`decision” or “provide information as to why they believed their decision was
`
`appropriate.” Dissenting Op. at 1. Subject to narrow exceptions not implicated
`
`here, “so long as the prosecutor has probable cause to believe that the accused
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`committed an offense defined by statute, the decision whether or not to prosecute,
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`and what charge to file or bring before a grand jury, generally rests entirely in his
`
`
`
`20
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`APP.21
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`
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`Case 18-3430, Document 92-1, 12/18/2019, 2732451, Page21 of 31
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`discretion.” United States v. Armstrong, 517 U.S. 456, 464 (1996); see also, e.g., United
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`States v. Ng, 699 F.2d 63, 68 (2d Cir. 1983) (“Although one may reasonably disagree
`
`with the [government’s] judgment in the matter, the evaluation of charges clearly
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`rested within