Second Circuit Vacates Conviction Because the District Court Did Not Permit Adequate Inquiry Into Juror Anti-Gang Bias

In United States v. Nieves, No. 21-1901 (2d Cir. Jan. 26, 2023), the Second Circuit took the rare step of tossing a criminal conviction because “the district court abused its discretion by failing to take any of several possible steps that could have effectively screened prospective jurors for [anti-gang] bias.”

Defendant Nieves was charged with allegedly intimidating or tampering with a witness in a federal proceeding, named Carela, who testified against Nieves’ organization in a 2018 criminal trial. “[A]fter encountering Carela on a Bronx sidewalk, Nieves pursued and physically confronted Carela, slashing Carela’s face with a razor blade and running off with his wallet and sneakers.” The government charged that Nieves’s motivations for the attack were “both retaliatory and proactive – i.e., as witness retaliation (for Carela’s past cooperation) and witness tampering (to discourage future cooperation). In support of that theory, the government elicited testimony from Carela that Nieves told him in the midst of the fight that ‘[t]his is happening to you for being a snitch.’”

“Prior to trial, both sides proposed gang-related voir dire questions. The government suggested asking whether prospective jurors or their families had ever ‘been involved . . . with a case involving a gang or other racketeering activity,’ and whether the fact that this case ‘involves racketeering activity, specifically, a gang’ would affect their judgment. App’x 33. The defendants recommended asking, among other similar inquiries, whether jurors had any ‘particular interest’ in ‘[s]treet gangs’ or ‘street violence,’ or any ‘personal experiences or feelings arising from any acts of violence . . . that would affect your impartiality in a case involving alleged gang violence.’ App’x 50, 52. The defendants also requested that the district court query whether any prospective jurors ‘ha[d] any negative feelings, stereotypes, or opinions about Latino Americans,’ and whether they believed that ‘Latino American immigrants are more likely to commit crimes than immigrants of [other] backgrounds,’ along with related questions about immigration. App’x 51.”

Even though both sides sought such voir dire, the district court went with a much sparser screening procedure, simply inquiring whether the jurors could be “fair” and not mentioning gangs at all. Defense counsel objected that such highly generalized questioning was not “sufficient to allow us to meaningfully exercise any peremptory challenges.” But the judge retorted that it had a “long standing practice of not asking what might be called attitudinal questions,” explaining that “I think that is an invasion of privacy and I also think it is counterproductive and leads to colloquies.”

Following the defendant’s conviction, the judge further elaborated in response to a mistrial motion by the defense: “[Y]ou can’t describe gangs in the abstract. There are gangs and gangs. In order to ascertain whether a juror had a meaningfully improper view or is biased because the case involved gangs, which is the Court’s job when it is looking to excuse someone for cause, the Court would . . . inevitably have to get into the description of the facts of the particular case. You could make it a little abstract but it would still be that and that would be totally improper. For all those reasons, but especially the latter, I think those are not an appropriate role for the Court.”

The Second Circuit vacates and remands. While rejecting some of the defendant’s more expansive arguments, challenging the voir dire as a per se violation of his Sixth Amendment rights, the panel agrees that the district court’s near-total failure to probe into potential juror bias against gangs deprived the defendant of a fundamentally fair trial. “We hold that (1) prejudice against people associated with gangs

represented a pervasive bias relevant to a key dynamic likely to arise at trial, and (2) the district court neglected to ‘inquire about, or warn against,’ that bias.”

The risk of anti-gang bias creeping into the deliberations was palpable. “[I]t is undisputed that the district court was in fact well aware of the risk of gang-related bias in this case.” The U.S. Attorney told the judge in advance that its theory was that Nieves “targeted Carela specifically because of the [gang’s] ‘zero-tolerance’ policy towards members of their gang who cooperate with law enforcement.” Thus both sides proposed voir dire questions directed at potential juror bias. “[A] court can hardly be considered ignorant of a risk that both sides have presented as worthy of its attention.”

“The absence of dissent as to the prospect of bias against gang members is entirely unsurprising. In our view, it would have been obvious to anyone living in the New York City area at the time that there was a serious risk that jurors tasked with impassively assessing the credibility of the anticipated testimony from Carela and Detective Jeselson concerning the [gang], and impartially applying that testimony to defendants associated with that organization, would have some difficulty maintaining an open mind while doing so. It would have been obvious that prospective jurors might be predisposed to condemn Nieves by association because the specific thing he was associated with had long (and particularly in the months preceding trial) been the persistent target of an onslaught of local and national media reports reciting the violent practices of groups like the [gang] – much of it stimulated by pronouncements from members of the very executive branch conducting Nieves’s prosecution.”

Against this background, the district court’s deliberate refusal to inquire into juror anti-gang bias was indefensible. “[T]he district court must provide some opportunity for prospective jurors to be meaningfully screened for biases relevant to a particular defendant or the charges against that defendant.” Yet here the judge “did not ask – overtly or otherwise – about gang-related bias, notwithstanding that the government’s central theory of the case was that the assault was motivated by gang rules, and its evidence in support of that theory consisted of gang-member testimony and gang-related expert testimony. The court in fact deliberately declined to mention that the case concerned gangs at all, or at least to caution the jurors that any feelings they might have about gangs or gang members must be set aside in service of their duty to decide, based on the evidence presented, whether the government established all elements of the charged crimes beyond a reasonable doubt.”

“In short, in our view, a capable and experienced district judge faced with an admittedly tricky task made the wrong call for the wrong reasons . . . . Although we do not doubt the sincerity of the district court’s belief that it was charting the most appropriate course, it is difficult for us, sitting in review, to imagine what less it could have done to guard against potential bias against gang members, even as the court itself acknowledged that the issue warranted close attention.”

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