United States v. Ackerly, 981 F.3d 70

Background

Ackerly was indicted with three colleagues for a scheme bribing an ISS employee (Brian Zentmyer) to obtain nonpublic proxy-voting information; charges included wire fraud, honest-services wire fraud, and conspiracy.
First trial began with four defendants; after three jurors were excused, Ackerly refused to consent to a jury of fewer than twelve, creating an impasse and a mistrial; co-defendants sought and briefly obtained dismissal on double-jeopardy grounds (later reversed on appeal).
At Ackerly’s separate retrial, the government referenced Zentmyer in opening but did not call him; cooperating witness Keith Haynes testified about bribery and receipt of confidential information.
On redirect, the prosecutor asked Haynes whether Zentmyer had pled guilty; the district court sustained defense objection and gave curative instructions that lawyers’ statements are not evidence and that others’ pleas do not bear on Ackerly’s guilt.
The jury convicted Ackerly; she moved for a new trial arguing a Sixth Amendment Confrontation Clause violation from the prosecutor’s question; the district court granted a new trial, applying Chapman harmlessness review; the government appealed.

Issues

Issue	Plaintiff's Argument (Ackerly)	Defendant's Argument (Government)	Held
Whether the Confrontation Clause is implicated when a testimonial statement is communicated to the jury but not admitted into evidence	Confrontation Clause bars communicating unconfronted testimonial statements to the jury (even if not formally admitted)	Confrontation Clause applies only when testimonial evidence is actually admitted against the accused; a question that was never answered cannot constitute a Confrontation Clause violation	No plain error for government; circuit precedent and Supreme Court decisions do not clearly foreclose the view that unconfronted testimonial statements not admitted into evidence can violate the Clause, so government’s categorical rule is unpreserved and not “clear or obvious”
Whether a single, withdrawn question followed by curative instructions can, as a matter of law, never violate the Confrontation Clause	A single unconfronted testimonial question can violate the Clause; curative instructions may mitigate prejudice but do not erase the constitutional error	A single unanswered question immediately followed by curative instructions cannot amount to constitutional error as a matter of law	No plain error; case law does not support a bright-line rule that a single question plus curatives can never constitute constitutional error; curative instructions address prejudice, not the existence of a Confrontation Clause violation
Standard of harmlessness applicable once a Confrontation Clause violation is found	Chapman applies: constitutional error is harmless only if harmless beyond a reasonable doubt	Government argued district court applied too strict a standard, but did not challenge the district court’s ultimate harmlessness finding on the merits on appeal	Government waived challenge to the Chapman standard as applied; the district court’s harmlessness determination stood and provided a basis to affirm the grant of a new trial

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (2004) (testimonial out-of-court statements require unavailability and prior opportunity for cross-examination to satisfy the Sixth Amendment)
Douglas v. Alabama, 380 U.S. 415 (1965) (reading a non-admitted confession to the jury effectively deprived defendant of confrontation)
Williams v. Illinois, 567 U.S. 50 (2012) (distinguishes use of out-of-court statements as the basis for expert opinion from use for truth of matter asserted; Confrontation Clause applies only to statements used for their truth)
United States v. Ofray-Campos, 534 F.3d 1 (1st Cir. 2008) (First Circuit recognized that jury exposure to co-defendants’ convictions or other extrinsic information can violate confrontation rights)
United States v. Maher, 454 F.3d 13 (1st Cir. 2006) (curative instruction did not erase Confrontation Clause violation when testimonial evidence was implicated)
Greer v. Miller, 483 U.S. 756 (1987) (curative instructions may cure general due-process prejudice but do not automatically resolve specific Bill-of-Rights violations)
Chapman v. California, 386 U.S. 18 (1967) (constitutional error is harmless only if the court is satisfied beyond a reasonable doubt that it did not contribute to the verdict)
United States v. Garske, 939 F.3d 321 (1st Cir. 2019) (procedural background: appellate decision concerning co-defendants and double-jeopardy issues relevant to retrial posture)