67 F.4th 146
3d Cir.2023Background
- Frank Nucera, former Bordentown Township police chief, was tried on three counts: a hate crime (18 U.S.C. § 249), deprivation of civil rights (18 U.S.C. § 242), and making false statements to the FBI (18 U.S.C. § 1001). The jury convicted on the false-statement count but deadlocked on the other two counts; a retrial on those counts later also ended in a mistrial.
- Trial evidence included audio recordings of Nucera using racial epithets and testimony from officers Roohr and Guido alleging Nucera slammed the arrestee’s head into a doorjamb; Nucera denied the act and attacked witnesses’ credibility.
- After the verdict, four jurors (all white) submitted affidavits alleging abusive, racially charged, and intimidating conduct by Juror Pamela Richardson (a Black juror) during deliberations; Richardson and the foreperson also spoke to the press.
- The District Court denied Nucera’s motion for a new trial and an evidentiary hearing, concluding Rule 606(b) barred the juror statements and Peña‑Rodriguez’s narrow constitutional exception for racial‑bias statements did not apply.
- The District Court admitted limited evidence about an out‑of‑court statement by the victim (Stroye) but excluded the actual statement under Rule 403 and declined to find it trustworthy under Rule 807; the Court also gave a unanimity instruction as requested by defense counsel.
- The Court imposed sentence on Count Three using a Guidelines cross‑reference from the false‑statement guideline (§2B1.1) to the civil‑rights guideline (§2H1.1); the Third Circuit vacated that portion of the sentence and remanded, finding the cross‑reference misapplied.
Issues
| Issue | Nucera's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether juror affidavits and post‑verdict statements alleging racial vitriol, intimidation, and misconduct warranted a new trial or evidentiary hearing | Affidavits show juror misconduct that tainted verdict; district court should hold hearing and order new trial | Rule 606(b) bars use of juror statements about deliberations; allegations fall outside 606(b) exceptions and Peña‑Rodriguez | Affirmed: Rule 606(b) bars the evidence; no Peña‑Rodriguez showing that a juror voted to convict because of defendant’s race, so no hearing or new trial |
| Whether Peña‑Rodriguez’s constitutional exception to Rule 606(b) applies to the jurors’ allegations (i.e., whether racial animus motivated a juror’s vote to convict) | Jurors’ accounts show pervasive racial animus that affected votes; Peña‑Rodriguez should cover this scenario | Peña‑Rodriguez is narrow: requires a clear statement that a juror relied on racial stereotypes/animus in voting to convict; record lacks that | Affirmed: Peña‑Rodriguez inapplicable—no clear statement that any juror voted to convict because of defendant’s race |
| Admissibility of Stroye’s out‑of‑court statement to FBI (hearsay/Rule 403/Rule 807) | Statement shows FBI ignored alternative suspect and undermines investigation; admissible (not offered for truth) or under residual exception | Admission would unfairly prejudice Government and deny Confrontation/cross‑examination; hearsay excluded and residual exception not met | Affirmed: Court properly excluded the statement under Rule 403 (and Rule 807 inapplicable); defense could still probe FBI investigation via other means |
| Whether the jury unanimity instruction for the false‑statement count was confusing | Instruction could have allowed non‑unanimity as to which false statement was found by each juror | Trial court adopted the precise instruction defense requested and made clarification on the record; no contemporaneous objection was made | Affirmed: No plain error—defense expressly requested the clarification and made no timely objection |
| Whether sentencing cross‑reference from §2B1.1(c)(3) to §2H1.1 was proper | Cross‑reference appropriate because the charged false statement related to the civil‑rights act alleged in other counts | §2B1.1(c)(3) applies only when the defendant’s conduct of making the false statement itself establishes the offense covered by another guideline; here the lie denied the civil‑rights act but did not itself constitute it | Reversed in part: Cross‑reference misapplied; vacate sentence and remand for resentencing consistent with holding |
Key Cases Cited
- Peña‑Rodriguez v. Colorado, 580 U.S. 206 (2017) (establishes narrow Sixth Amendment exception to Rule 606(b) when a juror makes a clear statement that racial stereotypes/animus motivated a vote to convict)
- Warger v. Shauers, 574 U.S. 40 (2014) (Rule 606(b) bars use of juror affidavits about deliberations to prove another juror’s dishonesty in voir dire)
- Tanner v. United States, 483 U.S. 107 (1987) (no‑impeachment rule protects jury deliberation secrecy; alternatives exist to policing juror misconduct)
- United States v. Lakhani, 480 F.3d 171 (3d Cir. 2007) (post‑verdict public juror statements are barred by Rule 606(b))
- United States v. Robinson, 872 F.3d 760 (6th Cir. 2017) (Peña‑Rodriguez did not apply where foreperson’s comments did not show she voted to convict because of defendants’ race)
- United States v. Genao, 343 F.3d 578 (2d Cir. 2003) (§2B1.1 cross‑reference requires that the false statement conduct establish the elements of the cross‑referenced offense)
- United States v. Arturo Garcia, 590 F.3d 308 (5th Cir. 2009) (cross‑reference upheld where the false statement conduct itself constituted the smuggling offense)
- United States v. Bah, 439 F.3d 423 (8th Cir. 2006) (cross‑reference improper where the charged false statement did not itself establish the cross‑referenced offense)
- Smith v. Phillips, 455 U.S. 209 (1982) (defendant is entitled to a jury willing to decide based solely on evidence)