117 F.4th 28
2d Cir.2024Background
- In early 2021 Rickey Johnson posted videos and sent Instagram messages threatening Fox hosts Greg Gutfeld and Laura Ingraham, Senator Joe Manchin, and Representative Lauren Boebert; FBI/Capitol Police and Fox security were notified and Johnson was arrested.
- Superseding indictment charged four counts: two counts of interstate threatening communications (18 U.S.C. § 875(c)) and two counts of threatening U.S. officials (18 U.S.C. § 115).
- Five‑day jury trial: three jurors were excused (one alternate for medical reasons; one juror for childcare; one juror found biased), leaving an eleven‑member jury; defense objected to proceeding without a written stipulation under Fed. R. Crim. P. 23(b).
- Trial evidence included: Johnson’s videos/messages, Special Agent Brandon Kelley’s testimony about threat assessment and security steps, Fox security director Clifford Cid’s testimony, and an email from Gutfeld to Cid labeled “Death threat.”
- Jury convicted Johnson on Counts One, Two, and Four (guilty) and acquitted on Count Three; district court sentenced him to 24 months’ imprisonment (concurrent) plus supervised release.
Issues
| Issue | Plaintiff's Argument (Johnson) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| 1) Proceeding to verdict with 11 jurors without written stipulation before deliberations | District court violated Rule 23(b); error is structural and requires automatic vacatur | Rule 23(b) was violated but the error is non‑structural and subject to harmless‑error review; evidence was overwhelming | Court: Rule 23(b) violation occurred but not structural; error harmless beyond a reasonable doubt — conviction affirmed |
| 2) Dismissal of Alternate No.2 and Juror No.2 (good‑cause challenge) | Excusals were not supported by good cause and were an abuse of discretion that prejudiced Johnson | Dismissals were within court’s discretion under Rule 24(c)(1); jurors were unable/impaired to perform duties | Court: No abuse of discretion; reasonable cause existed and any Rule 23(b) timing error was harmless |
| 3) Admission of Gutfeld’s email (hearsay and Confrontation Clause) | Email was hearsay/testimonial and admission denied Johnson confrontation rights | Email qualified as an excited utterance and/or state‑of‑mind evidence and was non‑testimonial; jury instructed limiting its use | Court: Admission proper — excited utterance and state‑of‑mind basis; non‑testimonial and did not violate Confrontation Clause |
| 4) Jury instruction that no adverse inference should be drawn from victims not testifying (uncalled‑witness charge) | Instruction prevented defense from arguing victims’ absence showed they didn’t take threats seriously | Instruction was within the court’s discretion because witnesses were equally available to both sides; ‘‘no inference’’ instruction is permissible | Court: Instruction appropriate and not an abuse of discretion |
| 5) Admission of Special Agent Kelley’s testimony as lay opinion vs impermissible expert opinion | Kelley’s testimony improperly offered expert conclusions and usurped jury’s fact‑finding | Testimony was investigatory lay opinion based on perception, helpful, and used reasoning familiar to jurors; admissible under Rule 701 | Court: Admission proper under Rule 701; not an impermissible expert usurpation |
Key Cases Cited
- Williams v. Florida, 399 U.S. 78 (1970) (held Sixth Amendment does not require a twelve‑member jury)
- Neder v. United States, 527 U.S. 1 (1999) (harmless‑error framework; structural errors limited)
- Weaver v. Massachusetts, 582 U.S. 286 (2017) (explains rationales for structural‑error doctrine)
- Crawford v. Washington, 541 U.S. 36 (2004) (defines testimonial statements under Confrontation Clause)
- Davis v. Washington, 547 U.S. 813 (2006) (ongoing‑emergency test for non‑testimonial statements)
- United States v. Curbelo, 343 F.3d 273 (4th Cir. 2003) (held proceeding with 11 jurors pre‑deliberation was structural error)
- United States v. Stratton, 779 F.2d 820 (2d Cir. 1985) (discusses Rule 23 amendment and 11‑juror verdicts)
- United States v. Quinones, 511 F.3d 289 (2d Cir. 2007) (state‑of‑mind hearsay admissibility)
- United States v. Rigas, 490 F.3d 208 (2d Cir. 2007) (lay investigatory opinion may be admissible under Rule 701)