United States v. Johnson

117 F.4th 28

Opinion

22-1289 United States v. Johnson

In the United States Court of Appeals FOR THE SECOND CIRCUIT

AUGUST TERM 2022 No. 22-1289

UNITED STATES OF AMERICA, Appellee,

v.

RICKEY JOHNSON, AKA SEALED DEFENDANT 1, AKA NEIL DAWN DEFARREN, Defendant-Appellant.

On Appeal from the United States District Court for the Southern District of New York

ARGUED: JUNE 6, 2023 DECIDED: SEPTEMBER 6, 2024

Before: CHIN and MENASHI, Circuit Judges, and ENGELMAYER, Judge. *

* Judge Paul A. Engelmayer of the United States District Court for the Southern District of New York, sitting by designation. Defendant Rickey Johnson was convicted of making threatening interstate communications and of threatening United States officials. He argues that five purported errors over the course of the trial require vacatur of his convictions: (1) the district court proceeded with eleven jurors prior to deliberations and without stipulation from the parties, (2) the district court dismissed two jurors for other than “good cause,” (3) an email from one of the victims was admitted in violation of the rule against hearsay evidence and in violation of the Confrontation Clause, (4) the district court erroneously delivered an “uncalled witness charge” prohibiting adverse inferences from a lack of testimony, and (5) the district court improperly admitted expert testimony as lay testimony. With respect to each argument, we conclude either that the district court did not err or that the error was harmless. We affirm the judgment of the district court.

Judge Chin dissents in a separate opinion.

COLLEEN P. CASSIDY, Federal Defenders of New York, New York, NY, for Defendant-Appellant.

KYLE A. WIRSHBA, Assistant United States Attorney (Patrick R. Moroney, Stephen J. Ritchin, Assistant United States Attorneys, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

1 MENASHI, Circuit Judge:

2 In 2021, Defendant-Appellant Rickey Johnson posted videos 3 and sent private messages on Instagram in which he threatened Fox

2 1 News hosts Greg Gutfeld and Laura Ingraham, Senator Joe Manchin, 2 and Representative Lauren Boebert. Given the seriousness of the 3 threats, Johnson was indicted on four counts. Counts One and Four 4 charged Johnson with making threatening interstate communications 5 in violation of 18 U.S.C. §§ 875(c) and 2; Counts Two and Three 6 charged Johnson with threatening United States officials in violation 7 of 18 U.S.C. §§ 115(a)(1)(B), (b)(4), and 2.

8 During the five-day jury trial in February 2022, the district 9 court dismissed three jurors: Alternate No. 2, Juror No. 7, and Juror 10 No. 2. The district court dismissed Alternate No. 2 on the second day 11 of the trial due to a medical emergency. It dismissed Juror No. 7 and 12 Juror No. 2 on the final day of the trial—just hours before the jury 13 retired to deliberate—due to a lack of childcare arrangements and a 14 finding of bias, respectively. The three dismissals reduced the jury to 15 eleven members.

16 At trial, the jury did not hear directly from the victims. 17 However, the jury did hear testimony from others who had contact 18 with the victims. Special Agent Brandon Kelley, a member of the 19 Threat Assessment Section of the U.S. Capitol Police, testified that he 20 examined the threats and contacted the victims to make security 21 arrangements. The director of corporate security at Fox Corporation, 22 Clifford Cid, also testified. During Cid’s testimony, the government 23 offered into evidence an email from Gutfeld to Cid that reported 24 receiving a death threat from Johnson’s Instagram account.

25 At the close of the trial, over the objection of the defense and 26 without stipulation from the parties, the district court permitted the 27 eleven-member jury to proceed to deliberate. After about one day of 28 deliberation, the jury returned a guilty verdict on Counts One, Two, 29 and Four. At the close of the following day, the jury returned a verdict

3 1 of not guilty on Count Three. The district court sentenced Johnson to 2 twenty-four months of imprisonment on each count of conviction— 3 to run concurrently and to be followed by three years of supervised 4 release—and imposed a mandatory special assessment of $300.

5 On appeal, Johnson argues that five purported errors by the 6 district court require vacatur of his convictions: (1) the decision to 7 proceed to deliberation with eleven jurors, (2) the dismissals of 8 Alternate No. 2 and Juror No. 2, (3) the admission of Gutfeld’s email 9 to Cid, (4) the delivery of an “uncalled witness” charge to the jury 10 prohibiting adverse inferences to be drawn from the absence of victim 11 testimony, and (5) the admission of Kelley’s testimony as lay rather 12 than expert testimony. With respect to each purported error, we 13 conclude either that the district court did not err or that the error was 14 harmless. We affirm the judgment of the district court.

15 BACKGROUND

16 I

17 On the morning of January 30, 2021, Rickey Johnson sent a 18 series of private messages to Fox News host Greg Gutfeld on 19 Instagram. The messages were brief but stated unambiguously “you 20 will be killed.” App’x 566. Gutfeld forwarded these messages by 21 email to Clifford Cid, the director of corporate security at Fox 22 Corporation, with the subject line “Death threat.” Id. at 29. Gutfeld 23 added the following note: “Mentions me and Jesse [Watters] and 24 Katie Pavlich. That is coming thru from his Instagram account to my 25 Facebook. If you go to his Instagram account which is under his same 26 name you’ll see that he says he’s in [M]anhattan.” Id. Cid notified the 27 New York City Police Department (“NYPD”) about the messages.

28 On February 3, 2021, Johnson posted three videos on his 29 Instagram account. Each video featured clips from Fox News with 4 1 Johnson speaking over the footage. The first video threatened Gutfeld 2 and Senator Joe Manchin. As the camera zoomed in on Gutfeld 3 appearing in a segment with other commentators, Johnson stated:

4 You know how y’all sit and talk about and support the 5 people who use the Constitution to kill people? I am 6 going to take your life. I am going to tell you before I do 7 it, like I am doing right now, but I’m gonna look you in 8 your fucking eye, and I’m gonna take your fucking life, 9 and everyone that knows I took your life is gonna know 10 why. 11 Id. at 576-77. The video then featured a clip of Manchin. As the camera 12 focused on Manchin, Johnson stated: “He’s dead. He is fucking dead. 13 He’s a Republican that wants to defund the people.” Id. at 571. 14 Johnson continued:

15 Joe Manchin will be executed. He can stop the American 16 people’s money. I don’t give a fuck about all this politics. 17 That bitch is on American soil. 450,000 Americans, on 18 American soil. I wanna know who’s who. We gonna see 19 how these motherfuckers out here vote. I’m killing their 20 ass. You think I’m joking. And you gonna know I fucking 21 did it. 22 Id. at 574. In the caption of the video, Johnson tagged Manchin’s 23 official Instagram account and wrote “bitch, you are a terrorist, and 24 will be held accountable for your treason.” Supp. App’x 1.

25 Johnson made similar threats against Fox News host Laura 26 Ingraham and Representative Lauren Boebert in the two other videos 27 he posted on February 3. Over footage of Ingraham speaking, Johnson 28 said:

29 Laura, you should stop but you’re not because you’re 30 paid to kill people. Laura Ingraham, you will be killed. I

5 1 want you dead. You are a racist, domestic terrorist. … I 2 want this white woman dead. I want Laura Ingraham 3 dead. I want Laura Ingraham murdered. Shout-out 4 Washington, D.C. I’m gonna kill you, Laura 5 Ingraham. … Laura Ingraham, I am going to personally 6 kill you. No, we’re targeting on you. I am going to kill 7 you. 8 App’x 581-85. Over footage of Boebert, Johnson said: “You don’t 9 terrorize me. I’m going to kill you. No no no no no. We kill people 10 who violate the Constitution. You are a self-proclaimed terrorist to 11 the American people.” Id. at 579. When in the footage Boebert smiled, 12 Johnson stated: “Smile, I am going to kill you. You are proud to 13 terrorize the United States Constitution.” Id. In the caption, Johnson 14 tagged Boebert’s official Instagram account along with the official 15 accounts of Governor Ron DeSantis and the U.S. Department of 16 Justice.

17 The NYPD, having learned of Johnson’s Instagram account 18 from Cid, alerted the U.S. Capitol Police. On February 4, 2021, Special 19 Agent Brandon Kelley of the Threat Assessment Section of the Capitol 20 Police reviewed the Instagram account. He then contacted the offices 21 of Manchin and Boebert. Manchin’s office requested that security 22 patrols be stationed outside the senator’s residence in West Virginia, 23 and Kelley arranged the patrols. Kelley also informed Boebert’s chief 24 of staff about a “possible threat.” Id. at 208-09. Kelley requested 25 Boebert’s schedule in order to provide extra security in Washington 26 and asked if she wanted patrols at her home in Colorado. Boebert did 27 not request security in Colorado, however, so it was not arranged. The 28 NYPD arrested Johnson on February 11, 2021.

29 A superseding indictment filed on January 12, 2022, charged 30 four counts. Counts One and Four charged Johnson with making

6 1 threatening interstate communications—to Gutfeld and Ingraham, 2 respectively—in violation of 18 U.S.C. §§ 875(c) and 2. Counts Two 3 and Three charged Johnson with threatening United States officials— 4 Manchin and Boebert, respectively—in violation of 18 U.S.C. 5 §§ 115(a)(1)(B), (b)(4), and 2.

6 II

7 The trial began on February 16, 2022. Twelve jurors and two 8 alternates were selected, and the jury heard opening statements and 9 testimony from Kelley. The next morning, February 17, one of the 10 alternate jurors—Alternate No. 2—informed the district court that she 11 had spent all night in the emergency room due to a swollen lip and 12 that she would not be able to arrive at the courthouse until the early 13 afternoon. The defense requested that the district court wait for 14 Alternate No. 2 to arrive before resuming the trial, and the 15 government asked for her to be dismissed so the trial could proceed. 16 The district court decided to dismiss Alternate No. 2 and to proceed.

17 That same morning, the district court also considered an 18 incident involving Juror No. 2. Detective David Cowan of the NYPD, 19 who had been involved in investigating Johnson, informed the 20 district court of statements that he had heard from Juror No. 2 while 21 standing outside the courtroom during a recess the day before. 22 According to Cowan, Juror No. 2 had said that “the white man stole 23 Manhattan from the Native Americans”; “Abraham Lincoln did not 24 want to free the slaves” but did so “because the northern states had 25 [an] interest in cheap labor”; “General Sherman and another general 26 from the Union Army slaughtered the plains Indians” when 27 constructing the intercontinental railroad; and “the white man killed 28 the Native Americans who had tobacco farms in the United States” 29 because of the financial interests of Englishmen in tobacco. Id. at 181.

7 1 According to Cowan, Juror No. 2’s statements were initially 2 addressed to a group including the other jurors, an attorney from Fox 3 Corporation, and Cowan himself. But as others moved away, Juror 4 No. 2 directed his commentary toward Cowan. It appeared to Cowan 5 that Juror No. 2 provided these historical reflections unprompted. 6 During the same morning, the district court alerted the parties to a 7 second incident involving Juror No. 2 in which he apparently 8 “approached … the lady who brought coffee to the jurors and started 9 talking to her.” Id. at 167.

10 The district court asked Juror No. 2 about his statements to 11 Cowan, and Juror No. 2 denied ever speaking to Cowan and became 12 indignant. He demanded that the district court identify his “accuser,” 13 and the district court told Juror No. 2 to “calm down.” Id. at 174. Juror 14 No. 2 acknowledged speaking to the woman with the coffee, but he 15 said that he did not discuss the case with her. Id. at 175.

16 The government urged the district court to excuse Juror No. 2 17 on the grounds that he was a “disruption” to the other jurors and that 18 he would be unable to “remain unbiased” because he associated 19 Cowan—whom he believed had accused him unjustly—with the 20 prosecution. Id. at 183-84. The district court recognized that Juror 21 No. 2’s statements “certainly contradict[ed] credible testimony by 22 Detective Cowan as to whether he talked to Cowan,” but the district 23 court permitted Juror No. 2 to remain on the jury pending further 24 consideration. Id. at 189. Later that day, the district court observed 25 Juror No. 2 asleep during testimony and admonished him. Juror No. 2 26 responded that “[m]y eyes were opened,” and the district court said, 27 “Oh, no they weren’t.” Id. at 302.

28 Also on February 17, during Cid’s testimony, defense counsel 29 objected to the government’s effort to admit Gutfeld’s email to Cid on

8 1 the grounds that the email was hearsay and that its admission 2 violated the Confrontation Clause. Defense counsel argued that the 3 government was trying to introduce “inadmissible hearsay by 4 claiming they are not offering it for its truth when that is what they 5 want to do” and that Johnson’s “Sixth Amendment right to confront 6 the witnesses against him would be in violation by having this 7 witness bring in statements that we believe are testimonial under 8 Crawford, and Mr. Johnson would not have the ability to cross- 9 examine this witness.” Id. at 252. After hearing argument from 10 defense counsel and from the government, the district court decided 11 that the email was an “excited utterance,” given the “relatively 12 compressed time frame” between when the Instagram messages were 13 sent and when Gutfeld composed it. Id. 259-60. 1 The district court 14 provided a limiting instruction to the jury that the email was “in 15 evidence solely for you to consider with respect to Mr. Gutfeld’s state 16 of mind when he received the Instagram post.” App’x 263-64.

17 The following morning—February 18—the district court 18 informed the parties that another juror, Juror No. 7, would be 19 excused. The juror had notified the district court that he was “unlikely 20 in the next couple of days to be able” to attend the proceedings due 21 to a lack of childcare arrangements. Id. at 399. Neither party objected, 22 and Alternate No. 1 replaced Juror No. 7. Twelve jurors remained.

23 The district court then returned to its consideration of Juror 24 No. 2. The district court said that it did not believe that the sleeping 25 incident required further action or that Juror No. 2 was “untruthful 26 deliberately” when questioned about talking to Cowan. Id. at 400. But

1 The district court referred to the timing of “the Instagram post,” but it meant the Instagram messages that prompted Gutfeld’s email rather than the videos that were posted four days later. App’x 260.

9 1 the district court recognized that Juror No. 2 was “agitated and upset 2 by the inquiry, which he regarded as the product of an accusation, 3 and obviously, as the product of an unfair and inaccurate accusation.” 4 Id. The district court decided to excuse Juror No. 2, it explained, 5 because of bias:

6 It is entirely likely that [Juror No. 2] attributed what he 7 regards as a false or inaccurate accusation to the 8 prosecution team. The most obvious target is Detective 9 Cowan whom he knows is connected to the prosecution 10 team. But given his level of agitation, and his upset, I 11 conclude that he is at least impliedly biased against the 12 prosecution. The chain of events is just such that I infer 13 that he holds this against the prosecution. He thinks it is 14 unjust and he holds it against him. Now, accordingly, 15 this is a circumstance in which the facts support the 16 presumption of bias, and in any case, my conclusion as 17 the finder of fact on this is that he is actively biased 18 against the government in all of the circumstances. 19 Id. at 400-01.

20 The district court proceeded with eleven jurors without 21 receiving a stipulation from the parties, explaining that “[u]nder Rule 22 24, the case can go to the jury with 11 jurors.” Id. at 401. 2 In response, 23 the defense moved for a mistrial. The district court denied the motion. 24 Following a charge conference, the parties delivered closing 25 arguments, the jury was instructed, and deliberation began. In its 26 instructions to the jury, the district court told the jury not to draw 27 adverse inferences from the absence of testimony from the four 28 targets of Johnson’s threats:

2 In fact, a case may go to a jury of eleven members under Rule 23(b). See Fed. R. Crim. P. 23(b).

10 1 Now, there are a number of people whose names you’ve 2 heard during the course of the trial who did not come 3 here and testify. I instruct you that both sides had an 4 equal opportunity or lack of opportunity to call those 5 people as witnesses. Therefore, you should not draw any 6 inference or reach any conclusions as to what they would 7 have said had they been called. Their absence should not 8 affect your judgment one way or the other. You should, 9 however, remember my instruction that the defendant is 10 not obliged in a criminal case to call any witnesses or 11 produce any evidence. 12 App’x 514. The jury deliberated for two hours on February 22 and 13 most of February 23. Late in the afternoon of February 23, the jury 14 returned a verdict of guilty on Counts One, Two, and Four. The jury 15 returned a verdict of not guilty on Count Three at the end of the day 16 on February 24. On May 25, 2022, the district court sentenced Johnson 17 to twenty-four months of imprisonment on each count—to run 18 concurrently and to be followed by three years of supervised 19 release—and imposed a $300 mandatory special assessment. On 20 October 26, 2022, Johnson completed his term of imprisonment and 21 began his term of supervised release.

22 DISCUSSION

23 Johnson identifies five purported errors that, he argues, each 24 require vacatur of his convictions: (1) the district court’s decision to 25 proceed with eleven jurors prior to deliberation and without 26 stipulation from the parties, (2) the dismissal of two jurors for other 27 than the “good cause” that Federal Rule of Criminal Procedure 23(b) 28 requires, (3) the admission of Gutfeld’s email in violation of the rule 29 against hearsay and the Confrontation Clause of the Sixth 30 Amendment, (4) the delivery of the uncalled witness charge 31 prohibiting adverse inferences to be drawn from the absence of

11 1 testimony from the victims, and (5) the improper admission of 2 Kelley’s testimony regarding the seriousness of the threats. With 3 respect to each purported error, we conclude either that the district 4 court did not err or that the error was harmless. We address each 5 argument in turn.

6 I

7 Johnson argues that the district court violated Federal Rule of 8 Criminal Procedure 23(b) when it proceeded with an eleven-member 9 jury before deliberation over the objection of the defense. In doing so, 10 according to Johnson, the district court committed a structural error 11 that requires the vacatur of his convictions. We agree with Johnson 12 that the district court erred in proceeding with an eleven-member jury 13 without stipulation from the parties and prior to deliberation. The 14 error, however, was not structural but subject to harmless error 15 review. We conclude that the error in this case was harmless and that 16 vacatur is not required.

17 A

18 According to Federal Rule of Criminal Procedure 23(b)(1), a 19 “jury consists of 12 persons unless this rule provides otherwise.” Fed. 20 R. Crim. P. 23(b)(1). The rule authorizes a smaller jury if, “before the 21 verdict,” the parties “stipulate in writing” either that “the jury may 22 consist of fewer than 12 persons” or that “a jury of fewer than 12 23 persons may return a verdict if the court finds it necessary to excuse 24 a juror for good cause after the trial begins.” Id. 23(b)(2). Pursuant to 25 a 1983 amendment to the rule, the district court “may permit a jury of 26 11 persons to return a verdict, even without a stipulation by the 27 parties,” if “[a]fter the jury has retired to deliberate,” the district court 28 “finds good cause to excuse a juror.” Id. 23(b)(3).

12 1 “Rule 23 incorporates the ‘venerable common law tradition’ of 2 a twelve-member jury while allowing the district court to reduce that 3 number upon a finding of good cause.” United States v. Ginyard, 444 4 F.3d 648, 652-53 (D.C. Cir. 2006) (citation omitted) (quoting United 5 States v. Araujo, 62 F.3d 930, 933 (7th Cir. 1995)). The rule can make 6 that allowance because the Supreme Court has said that there is no 7 constitutional right to a twelve-member jury. “[T]he fact that the jury 8 at common law was composed of precisely 12 is a historical accident, 9 unnecessary to effect the purposes of the jury system and wholly 10 without significance ‘except to mystics.’” Williams v. Florida, 399 U.S. 11 78, 102 (1970) (quoting Duncan v. Louisiana, 391 U.S. 145, 182 (1968) 12 (Harlan, J., dissenting)). That decision of the Supreme Court left the 13 issue “to Congress and the States, unrestrained by an interpretation 14 of the Sixth Amendment that would forever dictate the precise 15 number that can constitute a jury.” Id. at 103.

16 We have observed, following the decision in Williams, that “the 17 absolute right to a jury of twelve that [defendants] possessed prior to 18 the 1983 amendment of Rule 23(b) is no longer viewed as a 19 ‘substantial right’ by the Supreme Court.” United States v. Stratton, 779 20 F.2d 820, 834 (2d Cir. 1985). We therefore have held that the 21 retroactive application of amended Rule 23(b), allowing conviction by 22 eleven jurors, did not violate the Ex Post Facto Clause. “Whatever 23 disadvantage to the defendant may occur from reducing the jury size 24 from twelve to eleven is of insufficient proportion to give him a 25 constitutional right to a jury of twelve, and [it] does not affect the 26 substantial rights of the defendant for Ex Post Facto purposes.” Id. at 27 835 (citation omitted).

28 These prior precedents—holding that the right to a twelve- 29 member jury is neither a constitutional nor even a substantial right— 30 mean that a violation of Rule 23(b)’s twelve-member requirement

13 1 cannot amount to a structural error. The general rule is that “[a]ny 2 error, defect, irregularity, or variance that does not affect substantial 3 rights must be disregarded.” Fed. R. Crim. P. 52(a). We depart from 4 this harmless-error analysis only for “a limited class of fundamental 5 constitutional errors that defy analysis by ‘harmless error’ standards.” 6 Neder v. United States, 527 U.S. 1, 7 (1999) (emphasis added) (internal 7 quotation marks omitted). Such fundamental constitutional errors 8 “are so intrinsically harmful as to require automatic reversal … 9 without regard to their effect on the outcome.” Id. “For all other 10 constitutional errors”—let alone for non-constitutional errors— 11 “reviewing courts must apply Rule 52(a)’s harmless-error analysis 12 and must disregard errors that are harmless beyond a reasonable 13 doubt.” Id. (internal quotation marks and alteration omitted). The 14 Supreme Court has emphasized that “[t]he purpose of the structural 15 error doctrine is to ensure insistence on certain basic, constitutional 16 guarantees that should define the framework of any criminal trial.” 17 Weaver v. Massachusetts, 582 U.S. 286, 294-95 (2017) (emphasis added).

18 In accordance with the instructions of the Supreme Court, 19 “[c]ourts have recognized a limited number of structural errors, all 20 involving the violation of bedrock constitutional rights.” United States 21 v. Moran-Toala, 726 F.3d 334, 343 (2d Cir. 2013). Such an error 22 “requires automatic reversal and is not subject to harmless error 23 analysis because it involves a deprivation of a constitutional 24 protection so basic that in its absence, ‘a criminal trial cannot reliably 25 serve its function as a vehicle for determination of guilt or innocence, 26 and no criminal punishment may be regarded as fundamentally 27 fair.’” Bentley v. Scully, 41 F.3d 818, 823 n.1 (2d Cir. 1994) (quoting 28 Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). “The ‘highly 29 exceptional’ category of structural errors includes, for example, the 30 ‘denial of counsel of choice, denial of self-representation, denial of a

14 1 public trial, and failure to convey to a jury that guilt must be proved 2 beyond a reasonable doubt.’” Greer v. United States, 593 U.S. 503, 513 3 (2021) (quoting United States v. Davila, 569 U.S. 597, 611 (2013)).

4 In the absence of the deprivation of a constitutional right so 5 fundamental that the trial cannot be trusted to perform its function, 6 the Supreme Court “has repeatedly made clear” that we must adhere 7 to “the ‘general rule’ … that ‘a constitutional error does not 8 automatically require reversal of a conviction.’” Greer, 593 U.S. at 513 9 (quoting Fulminante, 499 U.S. at 306).

10 If the general rule applies to all constitutional errors beyond a 11 select few at the constitutional “bedrock,” it necessarily applies to 12 non-constitutional errors that are even further removed from that 13 foundation. Moran-Toala, 726 F.3d at 343; see also United States v. 14 Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) (“[G]enerally 15 speaking structural errors must, at a minimum, be constitutional 16 errors.”). Because the right to twelve rather than eleven jurors that 17 Rule 23(b) provides does not implicate the Constitution—at its 18 bedrock or otherwise—we review a violation of that rule for harmless 19 error. 3

20 B

21 We recognize that the Fourth Circuit has held that a district 22 court’s “decision to excuse the twelfth juror prior to deliberations and

3 The dissenting opinion objects that Rule 23(b) does not “by its terms” provide “a requirement of prejudice.” Post at 20. But no constitutional provision or procedural rule expressly provides that it applies only when there is prejudice. We nevertheless apply a “strong presumption” that “if the defendant had counsel and was tried by an impartial adjudicator … any other errors that may have occurred are subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 579 (1986).

15 1 absent the defendant’s consent” qualified as a structural error. United 2 States v. Curbelo, 343 F.3d 273, 285 (4th Cir. 2003). The court said that 3 it could deem that error to be structural “whether violative of the 4 Constitution or not.” Id. at 280. We agree with the dissenting opinion, 5 however, that the Supreme Court and the appellate courts “have 6 repeatedly made clear that structural errors necessarily must affect a 7 defendant’s constitutional rights.” Id. at 289 (Wilkins, J., dissenting). 4

8 Johnson argues that a violation of Rule 23(b) should be 9 considered a structural error because it “affects the very ‘framework 10 within which the trial proceeds, rather than simply … the trial process 11 itself.’” Appellant’s Br. 36 (quoting Neder, 527 U.S. at 8). But the 12 Supreme Court has told us that convening a jury “composed of 13 precisely 12” is “unnecessary to effect the purposes of the jury 14 system” because the number twelve is “wholly without significance.” 15 Williams, 399 U.S. at 102. Given this precedent, we cannot conclude 16 that a jury must feature twelve members for the trial to “reliably serve 17 its function as a vehicle for determination of guilt or innocence” and 18 to render a judgment that “may be regarded as fundamentally fair.” 19 Fulminante, 499 U.S. at 310.

4 Other decisions have required a new trial following a violation of Rule 23(b) without a showing of prejudice. See United States v. Essex, 734 F.2d 832, 845 (D.C. Cir. 1984) (“[N]o further prejudice need be shown than that the court did not comply with the stipulation and Rule 23(b), and that appellant was denied her right to have her case decided by the unanimous verdict of the 12 jurors who heard the case.”); United States v. Taylor, 498 F.2d 390, 392 (6th Cir. 1974) (“[T]he failure of the District Court to comply literally with the terms of Rule 23 requires reversal for new trial.”); see also Araujo, 62 F.3d at 937; United States v. Tabacca, 924 F.2d 906, 915 (9th Cir. 1991). These decisions, however, preceded the Supreme Court’s emphasis that structural errors include only “a limited class of fundamental constitutional errors.” Neder, 527 U.S. at 7.

16 1 In other words, deliberation by eleven rather than twelve jurors 2 does not alter “the framework within which the trial proceeds” but is 3 at most “an error in the trial process itself.” Id. Indeed, the district 4 court in this case dismissed the twelfth juror just before closing 5 arguments and the start of jury deliberation. Had the district court 6 waited a few hours—and dismissed the twelfth juror for cause after 7 the jury had “retired to deliberate”—the district court would not have 8 violated Rule 23(b). Fed. R. Crim. P. 23(b)(3). That small change in 9 timing did not implicate the fundamental fairness of the trial 10 procedure. 5

11 Johnson observes that Rule 23 originally codified the holding 12 of Patton v. United States, 281 U.S. 276 (1930), that the Sixth 13 Amendment required twelve jurors unless the defendant waived that 14 requirement. Reply Br. 6; see Patton, 281 U.S. at 292 (“A constitutional 15 jury means twelve men as though that number had been specifically 16 named.”). But the Supreme Court in Williams overruled that holding 17 of Patton, and Rule 23 has since been amended to allow the district 18 court to proceed with eleven jurors without the consent of the 19 defendant after deliberation has begun. When it revised Rule 23(b), 20 the Advisory Committee explained that “[p]roceeding with the 21 remaining 11 jurors, though heretofore impermissible under rule 22 23(b) absent stipulation by the parties and approval of the court, is 23 constitutionally permissible” pursuant to the holding of Williams. 6

5 We have likewise subjected the erroneous decision of a district court to seat an incorrect juror in violation of Federal Rule of Criminal Procedure 24(c)—in effect, denying the defendant the proper twelfth juror—to harmless error review. See, e.g., United States v. Hilts, 757 F. App’x 56, 58 (2d Cir. 2018); United States v. Hamed, 259 F. App’x 377, 378-79 (2d Cir. 2008). 6 Fed. R. Crim. P. 23 advisory committee’s note to 1983 amendment.

17 1 Johnson suggests that Williams was wrongly decided. See Reply 2 Br. 4-5. And there is some support for that position. Justice Gorsuch 3 has argued that “Williams was wrong the day it was decided, [and] it 4 remains wrong today.” Khorrami v. Arizona, 143 S. Ct. 22, 23 (2022) 5 (Gorsuch, J., dissenting from the denial of certiorari); see also 6 Cunningham v. Florida, 144 S. Ct. 1287, 1287 (2024) (Gorsuch, J., 7 dissenting from the denial of certiorari) (“In Williams v. Florida, this 8 Court in 1970 issued a revolutionary decision approving for the first 9 time the use of 6-member panels in criminal cases. In doing so, the 10 Court turned its back on the original meaning of the Constitution, 11 centuries of historical practice, and a battery of this Court’s 12 precedents.”) (internal quotation marks and citation omitted). Justice 13 Gorsuch would “reconsider Williams” because the twelve-person 14 criminal jury was well-established “[b]y the time of the Sixth 15 Amendment’s adoption,” and “the Sixth Amendment was widely 16 understood to protect this ancient right.” Khorrami, 143 S. Ct. at 23 17 (Gorsuch, J.). 7

18 Despite these arguments, “there are not yet four votes on [the 19 Supreme] Court to take up the question whether Williams should be 20 overruled,” so we remain bound to follow that precedent. 21 Cunningham, 144 S. Ct. at 1288 (Gorsuch, J.). Accordingly, we must 22 decline to recognize a new type of structural error that does not affect 23 a constitutional or even a substantial right.

7 The dissenting opinion similarly provides historical evidence for the proposition that “dispensing” with the requirement of twelve jurors “may be considered unconstitutional.” Post at 19 (quoting 2 Joseph Story, Commentaries on the Constitution of the United States 588 (1858)).

18 1 C

2 We agree with Johnson—and the government does not 3 dispute—that the district court violated Rule 23(b) when it proceeded 4 with an eleven-member jury before deliberation without a stipulation 5 from the parties. We review that violation for harmless error.

6 An “[e]rror is harmless if it is highly probable that it did not 7 contribute to the verdict.” United States v. Gomez, 617 F.3d 88, 95 (2d 8 Cir. 2010) (quoting United States v. Kaiser, 609 F.3d 556, 573 (2d Cir. 9 2010)). We have “repeatedly held that the strength of the 10 government’s case is the most critical factor in assessing whether 11 error was harmless.” United States v. McCallum, 584 F.3d 471, 478 (2d 12 Cir. 2009).

13 Johnson argues that the erroneous dismissal of the twelfth juror 14 “[i]n such a close case” cannot be considered harmless. Appellant’s 15 Br. 38. We disagree that the case was close. At trial, Johnson did not 16 deny that he posted and sent the threats nor did he dispute that the 17 other statutory predicates had been met, such as that the 18 communications were made in interstate commerce. Johnson’s only 19 defense was that he “was not seriously threatening to kill anyone” 20 and that “[n]o reasonable person would view Mr. Johnson’s 21 statements as reasonable threats, because they … were vague and 22 general.” App’x 454, 459. In our view, the evidence overwhelmingly 23 showed otherwise.

24 When it instructed the jury, the district court explained that the 25 government needed to prove that each statement was “made in such 26 circumstances that a reasonable person who heard or read the 27 statement would understand it as a serious expression of an intent to 28 inflict bodily injury or to kill.” Id. at 498. For Counts One and Four, 29 the government needed to show that Johnson “intended the

19 1 communication to be received as a true threat or that he knew that the 2 statement would be viewed as a true threat by the person to whom it 3 was directed.” Id. at 500. For Counts Two and Three, the government 4 needed to show that Johnson delivered the threat “with the intent to 5 impede, intimidate, or interfere with the specified officials while they 6 were engaged in the performance of their official duties or with the 7 intent to retaliate against the officials on account of the performance 8 of their official duties.” Id. at 505. The evidence here met those 9 standards—and would not have allowed a reasonable juror to draw 10 the contrary conclusion. The jury saw Johnson’s videotaped and 11 written statements directly. The language was unequivocally 12 threatening: “I’m gonna look you in your fucking eye, and I’m gonna 13 take your fucking life,” id. at 576-77; “Joe Manchin will be executed,” 14 id. at 574; and “Laura Ingraham, you will be killed. I want you dead. 15 … I am going to personally kill you. … I’m going to kill you with my 16 bare hands,” id. 581-87. Given this direct evidence, the government’s 17 case was strong.

18 A reasonable jury could view these statements only as a series 19 of explicit death threats. Other than the statements themselves, there 20 was no evidence at trial that indicated Johnson’s state of mind or 21 intention at the time he transmitted the death threats. The assembled 22 evidence thus did not provide the jury with a basis on which it could 23 reasonably have found that Johnson’s intention, in posting the 24 threats, was not culpable. Cf. Neder, 527 U.S. at 17 (“[W]here a 25 reviewing court concludes beyond a reasonable doubt that the 26 omitted element was uncontested and supported by overwhelming 27 evidence, such that the jury verdict would have been the same absent 28 the error, the erroneous instruction is properly found to be 29 harmless.”).

20 1 The conduct of the jury did not indicate that there was 2 significant disagreement over Counts One, Two, and Four. After 3 delivering a guilty verdict on those counts, the foreperson indicated 4 that the jurors viewed Counts One, Two, and Four differently than 5 Count Three, with respect to which she did “not believe [the jury] will 6 be able to reach a consensus.” App’x 545. 8 One additional juror 7 participating in the deliberation would not have affected the outcome 8 on the counts that resulted in conviction.

9 Moreover, Rule 23(b)(3) allowed the district court to proceed to 10 verdict with eleven jurors “even without a stipulation by the parties” 11 if it had dismissed the twelfth juror for good cause “[a]fter the jury 12 has retired to deliberate.” Fed. R. Crim. P. 23(b)(3). Thus, as noted 13 above, if the dismissal had occurred just a few hours later—after 14 closing arguments and the jury charge—there would have been no 15 violation of Rule 23(b) but there still would have been deliberation by 16 only eleven jurors. That difference in the timing of the dismissal did 17 not contribute to the verdict.

18 Because the violation of Rule 23(b) did not affect the outcome 19 of the trial, there is no reasonable doubt that the error was harmless. 20 We conclude that the erroneous decision to proceed with eleven 21 jurors does not warrant vacatur of the judgment of conviction.

8 Jurors may have seen Count Three differently because Kelley described the video contemporaneously to Boebert as only a “possible threat,” and Boebert did not take security precautions in response. App’x 118-20, 208- 10.

21 1 II

2 Johnson next argues that the district court’s dismissals of 3 Alternate No. 2 and Juror No. 2 were not justified by “good cause” 4 and amounted to an abuse of discretion. We disagree.

5 Rule 23(b)(2)(B) allows the parties to stipulate that a jury of 6 fewer than twelve members may return a verdict “if the court finds it 7 necessary to excuse a juror for good cause after the trial begins.” Fed. 8 R. Crim. P. 23(b)(2)(B). Johnson argues that—when the district court 9 excused Alternate No. 2 and Juror No. 2 prior to the start of 10 deliberation—the district court violated Rule 23(b) not only because 11 it proceeded without a stipulation but also because “the court’s 12 dismissal of Juror 2 and Alternate 2 were unjustified by good cause, 13 and therefore abuses of discretion.” Appellant’s Br. 39.

14 We agree that the district court violated Rule 23(b) when it 15 decided—before the jury had retired to deliberate, and without a 16 stipulation from the parties—that it would permit eleven jurors to 17 return a verdict. As explained above, however, that error was 18 harmless. To the extent that the dismissals of Alternate No. 2 and 19 Juror No. 2 might be considered part of the violation of Rule 23(b), the 20 error would still be harmless for the same reasons.

21 But the district court did not dismiss Alternate No. 2 and Juror 22 No. 2 pursuant to a stipulation from the parties that “a jury of fewer 23 than 12 persons may return a verdict if the court finds it necessary to 24 excuse a juror for good cause after the trial begins.” Fed. R. Crim. P. 25 23(b)(2)(B). Accordingly, the dismissals are properly evaluated under 26 Rule 24(c)(1), which allows the district court “to replace any jurors 27 who are unable to perform or who are disqualified from performing 28 their duties.” Id. 24(c)(1). The “district courts have ‘broad discretion 29 under Rule 24(c) to replace a juror at any time before the jury retires

22 1 if there is reasonable cause to do so, and a reviewing court will only 2 find abuse of that discretion where there is bias or prejudice to the 3 defendant.’” United States v. Thompson, 528 F.3d 110, 121 (2d Cir. 2008) 4 (alteration omitted) (quoting United States v. Purdy, 144 F.3d 241, 247 5 (2d Cir. 1998)). “A juror may be discharged for misleading the court 6 or when facts are presented which convince the court that a juror’s 7 ability to perform his duty has become impaired.” United States v. 8 Floyd, 496 F.2d 982, 990 (2d Cir. 1974). 9

9 As we have explained, Johnson did not suffer prejudice from 10 the absence of a twelfth juror. And, in any event, we conclude that the 11 district court did not abuse its discretion in dismissing Alternate No. 2 12 and Juror No. 2. The three-hour delay that waiting for Alternate No. 2 13 would have occasioned provided reasonable cause for dismissal. 14 Alternate No. 2 informed the district court that she had been “up all 15 night” in the emergency room after her lips had swelled to “10 times” 16 the normal size, App’x 170, and that she would not be able to reach 17 the courthouse until “12:30 [pm] or so,” id. at 189. It was not 18 unreasonable for the district court to be concerned about the ability of

9 We note that the “reasonable cause” standard under Rule 24(c)(1) does not differ significantly from the “good cause” standard under Rule 23(b), which “embraces all kinds of problems—temporary as well as those of long duration—that may befall a juror,” United States v. Reese, 33 F.3d 166, 173 (2d Cir. 1994), and which “establishes no bright-line test for determining the length of juror unavailability that constitutes good cause for excusal,” United States v. Paulino, 445 F.3d 211, 226 (2d Cir. 2006). “All that is needed to satisfy a prudent exercise of discretion is to be certain the trial court had sufficient information to make an informed decision.” Id. (quoting Reese, 33 F.3d at 173). “The trial judge has substantial discretion under Rule 23(b) to remove a juror after deliberations have commenced where the judge has determined that the juror’s ability to perform her duties has been impaired,” including the ability “to deliberate as a fair and impartial juror.” United States v. Barone, 114 F.3d 1284, 1307 (1st Cir. 1997).

23 1 Alternate No. 2 to perform her duties and to want to avoid delay. We 2 have previously affirmed the dismissal of a juror who was ten 3 minutes late to court because “we certainly cannot say that the judge 4 abused his discretion by insisting on going ahead after 10 minutes.” 5 United States v. Domenech, 476 F.2d 1229, 1232 (2d Cir. 1973). We 6 cannot say it here either.

7 Johnson argues that the dismissal was an abuse of discretion 8 because it left only one alternate and because the district court was 9 simultaneously considering whether to dismiss Juror No. 2. But “no 10 law … requires, or even encourages, an appeals court to apply 20/20 11 hindsight to discretionary jury management decisions by district 12 judges.” Paulino, 445 F.3d at 226. We agree that the ultimate decision 13 to proceed to verdict with eleven jurors was erroneous. Yet that does 14 not mean that every prior decision which led to that point was 15 necessarily erroneous as well.

16 The district court also did not abuse its discretion in dismissing 17 Juror No. 2 after finding him to be “actively biased against the 18 government” because “he attributed what he regards as a false or 19 inaccurate accusation to the prosecution team.” App’x 400-01. There 20 is good cause—even under Rule 23(b)—to “dismiss jurors who, 21 although available and physically capable of serving, are nonetheless 22 found to be unable to perform their duties properly,” and for that 23 reason “Rule 23(b) dismissals have been upheld repeatedly in cases 24 where the trial court found that a juror was no longer capable of 25 rendering an impartial verdict.” United States v. Thomas, 116 F.3d 606, 26 613 (2d Cir. 1997). Accordingly, there was surely reasonable cause 27 under Rule 24(c)(1) to dismiss Juror No. 2 when his statements and 28 answers to questioning revealed “that the juror in question would not 29 be able to decide the matter objectively.” United States v. Torres, 128 30 F.3d 38, 47 (2d Cir. 1997).

24 1 III

2 Johnson further argues that the admission of Gutfeld’s “Death 3 threat” email as an excited utterance violated the hearsay rule and the 4 Confrontation Clause. We again disagree.

5 A

6 The excited utterance exception to the rule against hearsay 7 allows the admission of an out-of-court “statement relating to a 8 startling event or condition, made while the declarant was under the 9 stress of excitement that it caused.” Fed. R. Evid. 803(2). “The 10 rationale for this hearsay exception is that the excitement of the event 11 limits the declarant’s capacity to fabricate a statement and thereby 12 offers some guarantee of its reliability.” United States v. Tocco, 135 F.3d 13 116, 127 (2d Cir. 1998).

14 An excited utterance is not synonymous with a present sense 15 impression, however. “[W]hile the hearsay exception for present 16 sense impressions focuses on contemporaneity as the guarantor of 17 reliability, and requires that the hearsay statement ‘describe or 18 explain’ the contemporaneous event or condition, the excited 19 utterance exception is based on the psychological impact of the event 20 itself, and permits admission of a broader range of hearsay 21 statements—i.e. those that ‘relate to’ the event.” United States v. Jones, 22 299 F.3d 103, 112 n.3 (2d Cir. 2002) (citation omitted) (quoting Fed. R. 23 Evid. 803(1), 803(2)). Therefore, “[a]n excited utterance need not be 24 contemporaneous with the startling event to be admissible under 25 Rule 803(2).” Tocco, 135 F.3d at 127 (approving the admission of an 26 excited utterance that occurred three hours after the startling event); 27 see also United States v. Scarpa, 913 F.2d 993, 1017 (2d. Cir. 1990) 28 (approving the admission of an excited utterance despite a “lapse of 29 five or six hours” between the utterance and the startling event).

25 1 In this case, Johnson argues that the email lacked the 2 “spontaneity” necessary to qualify as an excited utterance. Gutfeld 3 sent the email—devoid of excited punctuation or language indicating 4 that he was startled—several hours after Johnson sent him the 5 Instagram messages. According to Johnson, “[t]here was no 6 spontaneity in Gutfeld’s email characterizing the message as a ‘Death 7 threat.’” Appellant’s Br. 48.

8 Assuming that the email qualified as hearsay and required a 9 hearsay exception, we conclude that the district court did not abuse 10 its discretion by admitting the email as an excited utterance. The 11 district court reasonably concluded that Gutfeld was still under the 12 stress of the startling event when he wrote his email to corporate 13 security personnel. Johnson sent the Instagram message at 5:30 am, 14 when most people would be asleep—probably including Gutfeld, 15 who as the district court noted “does an evening show.” App’x 260. 16 The district court found that Gutfeld would have seen the messages 17 “materially later than 5 something in the morning,” close in time to 18 when he sent his email at 9:45 am. Id. That Gutfeld titled the email 19 “Death threat” and forwarded it to security personnel suggests he 20 took it seriously and was alarmed by it. That Gutfeld noted that the 21 sender was located in Manhattan does not indicate that Gutfeld was 22 no longer startled but more likely would have prompted greater 23 alarm.

24 Even if the email had not been admitted as an excited utterance, 25 however, its admission would have nonetheless been proper as 26 evidence of the declarant’s “then-existing state of mind … or 27 emotional, sensory or physical condition.” Fed. R. Evid. 803(3). As we 28 have previously explained, “when a declaration is admitted only to 29 prove a relevant state of mind, it does not appear to matter whether 30 admissibility is predicated on the declaration not being hearsay or

26 1 under the Rule 803(3) hearsay exception for declaration of states of 2 mind because under either theory, a state of mind can be proved 3 circumstantially by statements which are not intended to assert the 4 truth of the fact being proved.” United States v. Quinones, 511 F.3d 289, 5 312 (2d. Cir. 2007) (alterations omitted) (quoting United States v. 6 Southland Corp., 760 F.2d 1366, 1376 (2d Cir. 1985)). The district court 7 instructed the jury that the email was “in evidence solely for [the jury] 8 to consider with respect to Mr. Gutfeld’s state of mind when he 9 received the Instagram post.” App’x 263. The email was therefore 10 evidence of the degree to which Gutfeld perceived the Instagram 11 messages to be a serious threat, not whether the messages in fact were 12 true threats or intended to be. It was not admitted for the truth of the 13 matter it asserted. Given the two bases on which the email was 14 properly admitted, the district court did not abuse its discretion by 15 admitting it.

16 B

17 “In all criminal prosecutions, the accused shall enjoy the 18 right … to be confronted with the witnesses against him.” U.S. Const. 19 amend. VI. By guaranteeing that an accused has the right of 20 confrontation, the Confrontation Clause of the Sixth Amendment 21 “bars the admission at trial of ‘testimonial statements’ of an absent 22 witness unless she is ‘unavailable to testify, and the defendant has 23 had a prior opportunity to cross-examine her.’” Smith v. Arizona, 144 24 S. Ct. 1785, 1791 (2024) (alteration omitted) (quoting Crawford v. 25 Washington, 541 U.S. 36, 53-54 (2004)).

26 “[T]wo limits” define the scope of this prohibition. Id. at 1792. 27 First, “the Clause confines itself to ‘testimonial statements,’” id. at 28 1792 (quoting Davis v. Washington, 547 U.S. 813, 823 (2006)), “or, put 29 differently, the Confrontation Clause simply has no application to

27 1 nontestimonial statements,” United States v. Feliz, 467 F.3d 227, 231 (2d 2 Cir. 2006). The Supreme Court has identified a “core class of 3 ‘testimonial’ statements” that includes “ex parte in-court testimony or 4 its functional equivalent”; “extrajudicial statements contained in 5 formalized testimonial materials, such as affidavits, depositions, prior 6 testimony, or confessions”; and “statements that were made under 7 circumstances which would lead an objective witness reasonably to 8 believe that the statement would be available for use at a later trial.” 9 Garlick v. Lee, 1 F.4th 122, 129 (2d Cir. 2021) (quoting Crawford, 541 U.S. 10 51-52). Testimonial statements also include “statements ‘made in the 11 course of police interrogation’” when “the primary purpose of the 12 interrogation was to establish or prove past events potentially 13 relevant to later criminal prosecution.” Smith, 144 S. Ct. at 1792 14 (alteration omitted) (quoting Davis, 547 U.S. at 822). But “statements 15 made to police ‘to meet an ongoing emergency’” that “were ‘not 16 procured with a primary purpose of creating an out-of-court 17 substitute for trial testimony’” are not testimonial. Id. (quoting 18 Michigan v. Bryant, 562 U.S. 344, 358-59 (2011)). “The reliability of a 19 testimonial statement may be determined only ‘by testing in the 20 crucible of cross-examination.’” Garlick, 1 F.4th at 129 (quoting 21 Crawford, 541 U.S. at 61).

22 Second, the Confrontation Clause “bars only the introduction 23 of hearsay—meaning, out-of-court statements offered ‘to prove the 24 truth of the matter asserted.’” Smith, 144 S. Ct. at 1792 (quoting 25 Anderson v. United States, 417 U.S. 211, 219 (1974)). “When a statement 26 is admitted for a reason unrelated to its truth … the Clause’s ‘role in 27 protecting the right to cross-examination’ is not implicated.” Id. 28 (quoting Tennessee v. Street, 471 U.S. 409, 414 (1985)).

29 Johnson argues that the admission of Gutfeld’s email violated 30 the Confrontation Clause because the email included a testimonial

28 1 statement made by a non-testifying declarant. According to Johnson, 2 when Gutfeld turned over the Instagram messages to Fox security 3 personnel, he would have expected that government prosecutors 4 would use the email as the functional equivalent of in-court 5 testimony. We disagree. The admission of the email did not violate 6 the Confrontation Clause because the email fell outside the “two 7 limits” the Supreme Court has identified: it was neither testimonial 8 nor hearsay. Smith, 144 S. Ct. at 1792.

9 First, the email was non-testimonial because it was not 10 generated as part of a police interrogation, investigation, or any other 11 process that aimed “to establish or prove past events potentially 12 relevant to later criminal prosecution.” Smith, 144 S. Ct. at 1792 13 (quoting Davis, 547 U.S. at 822). The email was even further removed 14 from the class of testimonial statements than “statements made to 15 police ‘to meet an ongoing emergency’” that “were ‘not procured 16 with a primary purpose of creating an out-of-court substitute for trial 17 testimony,’” id. (quoting Bryant, 562 U.S. at 358-59), because Gutfeld 18 did not even communicate with law enforcement. Rather, he alerted 19 his company’s internal personnel about a possible threat with the 20 purpose of addressing his immediate security concern rather than 21 establishing past events.

22 Second, as the district court instructed the jury, the email was 23 admitted “solely for [the jury] to consider with respect to 24 Mr. Gutfeld’s state of mind when he received the Instagram post.” 25 App’x 263. It was therefore admitted not for the truth of the matter 26 asserted but to establish “a state of mind,” which “can be proved 27 circumstantially by statements which are not intended to assert the 28 truth of the fact being proved.” Quinones, 511 F.3d at 312 (quoting 29 Southland Corp., 760 F.2d at 1376). Under these circumstances, the

29 1 admission did not violate the Confrontation Clause. See Smith, 144 2 S. Ct. at 1792.

3 IV

4 Johnson argues that the district court erred when it delivered 5 an uncalled witness charge, instructing the jury that the absence of 6 witnesses “should not affect your judgment one way or another.” 7 App’x 514. Johnson claims that the instruction “severely prejudiced 8 the defense” because it “undermined the valid defense argument that 9 the subjects’ failure to testify demonstrated that they did not take the 10 threats seriously.” Appellant’s Br. 53. We conclude that the 11 instruction was not erroneous.

12 When a particular witness is equally available to both sides but 13 neither party calls the witness, “the court has discretion to (1) give no 14 instruction and leave the entire subject to summations, (2) instruct the 15 jury that no unfavorable inference may be drawn against either side, 16 or (3) instruct the jury that an adverse inference may be drawn against 17 either or both sides.” United States v. Caccia, 122 F.3d 136, 139 (2d Cir. 18 1997) (citations omitted). In this case, the district court chose the 19 second option. One leading commentary explains that this “option, 20 charging that no inference should be drawn against either party, is 21 recommended” and that “courts are in general agreement concerning 22 the acceptability of … instructing the jury to draw no inferences 23 against either party.” 1 Modern Federal Jury Instructions—Criminal 24 ¶ 6.04 (2024). Such an “instruction is preferred because it removes the 25 issue from consideration of the jury, avoiding the possibility that the 26 jury will draw inappropriate inferences from the absence of the

30 1 witness.” Id. 10 Overall, “[t]he decision whether to give a missing 2 witness instruction is within the discretion of the trial court.” United 3 States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994).

4 The district court did not abuse that discretion here. Johnson 5 argues that the instruction prevented the jury from considering the 6 defense’s “valid point that the failure of any of the subjects” of the 7 alleged threats “to testify showed that they did not take these videos 8 seriously.” Appellant’s Br. 54-55. But Johnson does not dispute that 9 “both sides had an equal opportunity or lack of opportunity to call” 10 the subjects “as witnesses.” App’x 514. Had Johnson wanted to show 11 that the subjects did not take the threats seriously, the defense could 12 have subpoenaed Gutfeld, Ingraham, Manchin, or Boebert. Having 13 chosen not to do so, the defense could not argue to the jury that the 14 government’s decision to make the same choice as the defense serves 15 as evidence of what the witnesses would have said.

16 Johnson points to a statement in the opinion in Caccia— 17 describing the prior opinion in Adeniji—to the effect that “we have 18 suggested that where a witness is equally available to both sides, a 19 missing witness charge is ‘inappropriate.’” Caccia, 122 F.3d at 139 20 (quoting Adeniji, 31 F.3d at 65); Appellant’s Br. 54. But neither Adeniji 21 nor Caccia help Johnson. In Adeniji, the defendant argued that “the 22 district court committed plain error in failing to give a missing witness

10 But see 2 John Henry Wigmore, Evidence § 288(c), at 208 (Chadbourn rev. 1979) (arguing that “the more logical view is that the failure to produce is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances”). We have said that when “the district court instructs the jury that the defendant is not compelled to produce any witnesses, there may be some question as to which of the two alternative charges would be the more logical.” United States v. Bahna, 68 F.3d 19, 22 (2d Cir. 1995).

31 1 charge regarding the unnamed agent who purportedly questioned 2 him about the jackets.” Adeniji, 31 F.3d at 65 (emphasis added). The 3 defendant thought the jury should have been instructed that an 4 adverse inference could be drawn against the government for failing 5 to call the agent because “[i]t is well settled that when a party has it 6 peculiarly within its power to produce witnesses and fails to do so, 7 the jury may infer that the testimony, if produced, would be 8 unfavorable to that party.” Id. (quoting United States v. Myerson, 18 9 F.3d 153, 158 (2d Cir. 1994)). We said that “[w]here the witness is 10 equally available to both parties, an instruction on this inference”— 11 that is, an adverse inference—“is inappropriate.” Id. Because “Adeniji 12 [had] not shown that the missing agent was unavailable to him,” he 13 could not establish that the district court erred in not affirmatively 14 authorizing an adverse inference against the government. Id.

15 Our decision in Caccia similarly concerned an “instruction 16 permitting an inference against either or both parties.” Caccia, 122 F.3d 17 at 139 (emphasis added). We said that such an instruction was 18 “especially inappropriate because of the circumstances countering the 19 equal availability of the witness.” Id. The missing witness had assisted 20 the government as an informant “and had expressed unwillingness 21 to speak to defense counsel before trial.” Id. We said that while “the 22 witness, having ended a relationship with the Government two years 23 previously, was not so peculiarly within the Government’s control as 24 to require the defendant’s requested instruction” authorizing an 25 adverse inference against the government, “the trial judge would 26 have been well advised either to refrain from giving an ‘equal 27 availability’ instruction or to instruct that no inference should be 28 drawn.” Id. We concluded that the district court’s instruction 29 permitting an inference against either party was not prejudicial, but

32 1 our statement that a “no inference” instruction would have been 2 preferable undermines Johnson’s argument here.

3 In fact, in United States v. Dawkins, we specifically rejected a 4 challenge to a jury instruction almost identical to the jury instruction 5 in this case. 11 The defendants in Dawkins requested an adverse 6 inference instruction against the government because “one of the 7 Government’s key witnesses, undercover agent D’Angelo, was 8 unavailable to them.” Dawkins, 999 F.3d at 796. But the district court 9 explained that “if the defendants had wanted to call D’Angelo to 10 testify about his meetings with the defendants, or for some other 11 permissible purpose, they clearly could have done so.” Id. at 797. We 12 concluded that the case “falls within the situation we described in 13 United States v. Caccia: ‘where a witness is equally available to both 14 sides, but is not called by either side[,] the court has discretion’” to

11 Compare United States v. Dawkins, 999 F.3d 767, 796 (2d Cir. 2021) (“There are several persons whose names you may have heard during the course of the trial but did not appear to testify. I instruct you that each party has an equal opportunity, or lack of opportunity, to call any of these witnesses. Therefore, you should not draw any inferences or reach any conclusions as to what they would have testified to had they been called. Their absence should not affect your judgment in any way. You should, however, remember my instruction that the law does not impose on a defendant in a criminal case, the burden or duty of calling any witness or producing any testimony.”), with App’x 514 (“Now, there are a number of people whose names you’ve heard during the course of the trial who did not come here and testify. I instruct you that both sides had an equal opportunity or lack of opportunity to call those people as witnesses. Therefore, you should not draw any inference or reach any conclusions as to what they would have said had they been called. Their absence should not affect your judgment one way or the other. You should, however, remember my instruction that the defendant is not obliged in a criminal case to call any witnesses or produce any evidence.”).

33 1 give one of the three possible instructions, and “[t]he district court’s 2 choice of the second option fell within its broad discretion.” Id. 3 (alteration omitted) (quoting Caccia, 122 F.3d at 139).

4 In this case, Johnson “clearly could have” called the subjects of 5 his threats to testify. Id. Having made the same choice as the 6 government not to do so, he cannot claim that an inference should 7 point only in one direction or fault the district court for seeking to 8 “avoid[] the possibility that the jury will draw inappropriate 9 inferences from the absence of the witnesses.” 1 Modern Federal Jury 10 Instructions—Criminal, supra, ¶ 6.04. Under these circumstances, the 11 district court was “well advised … to instruct that no inference should 12 be drawn.” Caccia, 122 F.3d at 139.

13 V

14 Finally, Johnson argues that the district court erred in 15 admitting the testimony of Kelley regarding the seriousness of 16 Johnson’s threats. According to Johnson, the testimony was 17 impermissible expert opinion under Federal Rule of Evidence 701 and 18 usurped the role of the jury. Appellant’s Br. 56-58. We disagree.

19 “We review a district court’s evidentiary rulings under ‘a 20 deferential abuse of discretion standard’ and will disturb its rulings 21 ‘only where the decision to admit or exclude evidence was manifestly 22 erroneous,’” United States v. Skelos, 988 F.3d 645, 662 (2d Cir. 2021) 23 (quoting United States v. Litvak, 808 F.3d 160, 179 (2d Cir. 2015)), and 24 “only if [the] error affects a ‘substantial right’” in that it “had a 25 ‘substantial and injurious effect or influence’ on the jury’s verdict,” 26 United States v. Garcia, 413 F.3d 201, 210 (2d Cir. 2005) (quoting United 27 States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003)).

28 Rule 701 provides that “[i]f a witness is not testifying as an 29 expert, testimony in the form of an opinion is limited” to an opinion 34 1 that is “(a) rationally based on the witness’s perception,” “(b) helpful 2 to clearly understanding the witness’s testimony or to determining a 3 fact in issue,” and “(c) not based on scientific, technical, or other 4 specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 5 701. Because such an opinion is not expert but “lay opinion,” it must 6 reflect “reasoning processes familiar to the average person in 7 everyday life.” Garcia, 413 F.3d at 215. The “helpfulness requirement 8 is principally designed to provide assurance against the admission of 9 opinions which would merely tell the jury what result to reach.” 10 United States v. Flores, 945 F.3d 687, 706 (2d Cir. 2019) (internal 11 quotation marks and alteration omitted).

12 Johnson suggests that Kelley’s testimony about the nature of 13 the threats amounted to impermissible expert testimony because his 14 “reasoning process was not that of an average person in everyday 15 life” but reflected “specialized knowledge.” United States v. Cabrera, 16 13 F.4th 140, 150 (2d Cir. 2021); Appellant’s Br. 62-64. Johnson also 17 contends that Kelley’s testimony “usurped the function of the jury to 18 decide what to infer” from the evidence. United States v. Grinage, 390 19 F.3d 746, 750 (2d Cir. 2004); Appellant’s Br. 64-66.

20 Kelley testified about the events that followed the NYPD 21 alerting him to the threatening messages and videos that Johnson 22 posted. Kelley testified that he contacted Representative Boebert’s 23 chief of staff at 11:30 pm on February 4, 2021, because of “the type of 24 threat” he witnessed in the videos. App’x 114. Kelley thought that the 25 language “was concerning enough” that he “felt that it was necessary 26 to make sure that the office and the member of Congress was properly 27 notified.” Id. When asked to explain how he formulated that opinion, 28 he testified that he was concerned about three elements of the threats: 29 (1) that Johnson had said “I’m going to kill you,” phrasing that was 30 more “intens[e]” than “we are going to kill you” or “I hope you die,”

35 1 id. at 116-17; (2) that Johnson repeated the threat “over and over 2 again” throughout the video, id. at 117; and (3) that Johnson had 3 “tagged” Boebert’s account in the video, id.

4 With regard to the threats against Manchin, Kelley testified that 5 he ordered directed patrols at Manchin’s home because of “the 6 concerning nature and threatening aspect of [Johnson’s] comments.” 7 Id. at 201. On redirect, Kelley testified that he called Manchin’s chief 8 of staff because he was concerned by the “intensity of the language,” 9 the “repetition of the statements,” and the content of the caption in 10 the post. Id. at 244-45.

11 We conclude that the district court did not err in admitting 12 Kelley’s testimony. First, Kelley’s “specialized knowledge, or the fact 13 that he was chosen to carry out an investigation because of this 14 knowledge, does not render his testimony ‘expert’ as long as it was 15 based on his ‘investigation and reflected his investigatory findings 16 and conclusions, and was not rooted exclusively in his expertise.’” 17 United States v. Rigas, 490 F.3d 208, 224 (2d Cir. 2007) (quoting Bank of 18 China, N.Y. Branch v. NBM LLC, 359 F.3d 171, 181 (2d Cir. 2004)). 19 Kelley’s testimony was properly based on his investigation rather 20 than exclusively on his expertise. Second, because Kelley’s testimony 21 “resulted from a process of reasoning familiar in everyday life, it was 22 permissible lay opinion testimony under Rule 701.” Rigas, 490 F.3d at 23 224 (internal quotation marks and alteration omitted). Kelley’s 24 testimony that he was concerned by such things as the “intensity of 25 the language” and the “repetition of the statements,” App’x 244-45, 26 hardly reflects the sort of “opaque, intuitive process grounded in 27 some kind of specialized knowledge” that characterizes expert 28 testimony, Cabrera, 13 F.4th at 150.

36 1 In Cabrera, by contrast, the testifying agent reached an inference 2 “well beyond” what a lay person could have inferred. Id. In particular, 3 the agent “inferred from Cabrera’s driving that Cabrera must be one 4 of those experienced drug-dealers who had mastered the technique 5 of evading law enforcement.” Id. We said that “[a] lay person [would 6 be] unfamiliar with law enforcement surveillance techniques and 7 incapable of inferring that a suspect’s driving maneuvers evince 8 (1) experience with evading those techniques and, consequently, 9 (2) experience dealing drugs.” Id. To the contrary, a lay “juror might 10 as easily ascribe those maneuvers to watching the movies, or to a 11 paranoia born of inexperience.” Id. Kelley’s testimony was not “based 12 on specialized experience that the agent had accumulated from other 13 cases” nor did it involve “a specialized reasoning process not readily 14 understandable to the average juror.” United States v. Cuti, 720 F.3d 15 453, 460 (2d Cir. 2013). Because Kelley’s “reasoning was evident to the 16 jury,” it was not impermissible expert testimony. Id.

17 Additionally, we have said that it may be appropriate to 18 introduce testimony “to explain the investigation, or to show an 19 agent’s state of mind so that the jury will understand the reasons for 20 the agent’s subsequent actions,” and that such testimony may 21 “constitute appropriate rebuttal to initiatives launched by the 22 defendant.” United States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994). In this 23 case, the defense argued to the jury in its opening statement that Fox 24 Corporation did not respond in the same way to all threats but singled 25 out Johnson for his political views. The defense “implore[d]” the jury 26 “to ponder why that is.” App’x 99. “Why does Fox News, why did 27 they choose to pursue Mr. Johnson, but not others?” Id. The argument 28 suggested that law enforcement had an improper motivation in 29 targeting Johnson, given “the constant barrage of criticism and threats 30 from the public,” id. at 99-100, including from Fox Corporation, which

37 1 alerted law enforcement in the first place. This argument focused on 2 the motivation of law enforcement in responding to Johnson’s threats. 3 After the defense put that motivation at issue, it was proper for the 4 district court to allow the government to elicit testimony from Kelley 5 about why he responded to Johnson’s threats the way that he did.

6 Johnson nevertheless contends that Kelley’s testimony 7 “‘usurped the function of the jury to decide what to infer from the 8 content’ of [Johnson’s] statements and simply told the jurors what to 9 infer.” Appellant’s Br. 65 (quoting Grinage, 390 F.3d at 750). In Grinage, 10 a law enforcement agent “interpreted both the calls that the jury heard 11 and the calls that the jury did not hear,” applying specialized 12 expertise not only to decode the slang used in the calls but also to infer 13 from the calls the extent to which the participants must have been 14 involved in a drug conspiracy. Grinage, 390 F.3d at 750. Kelley’s 15 testimony, by contrast, “reflected his investigatory findings and 16 conclusions” and was otherwise based on “a process of reasoning 17 familiar to everyday life.” Rigas, 490 F.3d at 224. His testimony did 18 not “provid[e] an overall conclusion of criminal conduct” that 19 usurped the jury’s function. United States v. Zhong, 26 F.4th 536, 556 20 (2d Cir. 2022) (quoting Dukagjini, 326 F.3d at 54).

21 CONCLUSION

22 For the foregoing reasons, we affirm the judgment of the 23 district court.

38 CHIN, Circuit Judge, dissenting:

In this case, defendant-appellant Rickey Johnson was convicted on

three counts of a four-count superseding indictment -- by an eleven-person jury.

After discharging the twelfth juror (no alternates were available), the district

court proceeded with only eleven jurors. A district court, however, has

discretion to permit an eleven-person jury in a criminal case only upon the

parties' written stipulation or for good cause "[a]fter the jury has retired to

deliberate." Fed. R. Crim. P. 23(b)(3). Here, the district court did not have the

consent of the parties and the jury had not yet retired to deliberate. Hence, the

district court did not have authority to permit a jury of eleven persons to return a

verdict, and it erred in permitting an eleven-person jury to do so here. 1

On appeal, Johnson argues that the district court's violation of Rule

23(b) requires vacatur of his convictions without a consideration of prejudice

1 Rule 23(b)(2) provides that"[a]t any time before the verdict, the parties may, with the court's approval, stipulate in writing" to a jury of "fewer than 12 persons." The parties may stipulate to fewer than twelve persons outright or to fewer than twelve persons "if the court finds it necessary to excuse a juror for good cause after the trial begins." Fed. R. Crim. P. 23(b)(2)(A), (B). Rule 23(b)(3) provides that "[a]fter the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror." The provision permitting an eleven-person jury was added when Rule 23 was amended in 1983. See generally United States v. Stratton, 779 F.2d 820, 831 (2d Cir. 1985). because the error is structural. Alternatively, Johnson argues that, even

assuming the error is not structural, the government has failed to show that the

error was harmless. The majority affirms, concluding that, while the district

court did err in proceeding with an eleven-person jury in the circumstances here,

the error was not structural and, moreover, the error was harmless.

In my view, the error was structural. Even assuming a defendant

does not have a constitutional right to a twelve-person jury, the Federal Rules of

Criminal Procedure give a defendant that right in a federal criminal case, a right

that can be circumscribed only in the limited circumstances specified in Rule

23(b). The requirement of a twelve-person jury rendering a unanimous verdict is

part of the fundamental framework within which a federal criminal trial

operates, and has been a critical aspect of our criminal justice system for

hundreds of years.

Even assuming the error is not structural, the government has not

met its burden of showing that the error did not prejudice Johnson. See United

States v. Vonn, 535 U.S. 55, 62 (2002) (where a defendant timely objects to error

and harmless error review pursuant to Rule 52(a) applies, the government bears

"the burden of showing that any error was harmless, as having no effect on the

2 defendant's substantial rights"); United States v. Blaszczak, 56 F.4th 230, 245 (2d

Cir. 2022) ("In harmless-error analysis, the government bears the burden of

proof."). I cannot say with any assurance, let alone "fair assurance," that the

jury's "judgment was not substantially swayed by the error," and in my view "it

is impossible to conclude that substantial rights were not affected." Kotteakos v.

United States, 328 U.S. 750, 765 (1946).

Accordingly, I respectfully dissent. 2

I.

On February 3, 2021, while watching television alone at home,

Johnson made eight videos, recording himself ranting as Fox News television

hosts Greg Gutfeld and Laura Ingraham, Senator Joe Manchin, and

Congresswoman Lauren Boebert each appeared on the screen. He made

statements to the effect that he was going to kill them. He posted the videos to

his Instagram account. Gutfeld and Boebert were the subjects of one video each,

Manchin was the subject of two videos, and the remaining four videos pertained

to Ingraham. Johnson also sent a written message to Gutfeld on January 30, 2021,

2 In affirming, the majority rejects Johnson's other challenges to his conviction. See Majority Op. at 2. Because, in my view, the violation of Rule 23(b) alone requires vacatur, I do not address the other grounds raised by Johnson on appeal. 3 through Instagram, stating that Gutfeld "will be killed." App'x at 565. For this

conduct, the Superseding Indictment charged Johnson with two counts of

transmitting threatening communications in interstate commerce in violation of

18 U.S.C. § 875 and two counts of threatening a United States official in violation

of 18 U.S.C. §§ 115(a)(1)(B) and (b)(4). Counts One and Four charged Johnson

with making threats against Gutfeld and Ingraham, respectively. Counts Two

and Three charged Johnson with making threats against Senator Manchin and

Representative Boebert, respectively.

All four counts of the Superseding Indictment required the

government to prove beyond a reasonable doubt that Johnson's statements were

"true threats" -- that is, "serious statement[s] expressing an intention to inflict

bodily injury or to kill at once or in the future . . . [and] made in such

circumstances that a reasonable person who heard or read the statement would

understand it as a serious expression of an intent to inflict bodily injury or to

kill." App'x at 498. This element of the charged offenses was the key issue in

dispute at trial.

Johnson's trial, from voir dire to verdict, spanned five days. Trial

commenced on Wednesday, February 16, 2022. Twelve jurors and two alternates

4 were selected in the morning, and the government began presenting its case in

the afternoon. The next morning, Thursday, February 17, despite some delays

because of issues with two jurors (one, an alternate, was excused and one -- Juror

no. 2 -- was questioned but kept on the jury), the government completed its case

and it rested by the afternoon. The defense called its one and only witness that

afternoon as well. Proceedings were then adjourned until Tuesday, February 22,

because of Presidents' Day Weekend.

When trial resumed on Tuesday, on consent of the parties, the

district court excused Juror no. 7 and replaced him with the one remaining

alternate. The trial court then decided, over Johnson's objection, to excuse Juror

no. 2 based on its finding that the juror was "actively biased against the

government." Id. at 401. The district court decided to proceed with eleven jurors

over Johnson's objection, concluding that it was permitted to do so under "Rule

24." Id. 3

The defense did not present any further evidence and rested.

Counsel delivered their summations; the court charged the jury; and the eleven-

3 The district court was mistaken in citing Rule 24, and the lawyers did not correct the error. Rule 24 covers voir dire, peremptory challenges, and alternate jurors, and it does not address the number of jurors required to render a verdict. See Fed. R. Crim. P. 24. 5 member jury began its deliberations at 3:09 p.m. The jury was sent home at 5:25

p.m. The jury continued its deliberations the next day, Wednesday, February 23.

At one point, the jury sent out a note asking, in part: "Can we consider the

defendant not guilty by virtue of mental illness? Do we have to convict even if

we think he is mentally ill?" App'x at 530-31. At 4:45 p.m., the jury sent out

another note, stating: "At this time we have not reached a consensus on one of

the counts. We do not believe we will reach a consensus. How do we

proceed[?]" Id. at 540. The court denied Johnson's request for a mistrial as to the

one count, and gave the jury the option of continuing to deliberate without

returning a partial verdict as to the counts it agreed on or returning a partial

verdict on those counts and then continuing to deliberate on the final count.

At 5:40 p.m., the jury sent another note indicating it had reached a

verdict. The jury returned a partial verdict, finding Johnson guilty of Counts

One, Two, and Four. As the jury was being polled, the foreperson asked if he

could say something, and then advised the court that "[w]e do not believe we

will be able to reach a consensus on Count Three." Id. at 545. The district court

instructed the jury nonetheless to return the next day. The jury indeed returned

6 the next morning, Thursday, February 24, and continued its deliberations. At

5:08 p.m., it returned a verdict on Count Three, finding Johnson not guilty.

Accordingly, although the trial spanned five days, the presentation

of evidence took only one day, while the jury deliberations took more than two

full days.

II.

The first issue is whether Johnson is entitled to relief without regard

to prejudice. Most errors that are preserved at trial -- including many

constitutional errors -- are reviewed for harmlessness. See Fed. R. Crim. P. 52(a)

("Any error, defect, irregularity, or variance that does not affect substantial rights

must be disregarded."); see also Arizona v. Fulminante, 499 U.S. 279, 306 (1991)

("Since this Court's landmark decision in Chapman v. California, 386 U.S. 18 (1967),

in which we adopted the general rule that a constitutional error does not

automatically require reversal of a conviction, the Court has applied harmless-

error analysis to a wide range of errors and has recognized that most

constitutional errors can be harmless." (collecting cases)). The "common thread

connecting" cases where harmless-error review has been applied "is that each

involved 'trial error' -- error which occurred during the presentation of the case

7 to the jury, and which may therefore be quantitatively assessed in the context of

other evidence presented in order to determine whether its admission was

harmless beyond a reasonable doubt." Fulminante, 499 U.S. at 307-08.

The Supreme Court has "recognized, however, that some errors

should not be deemed harmless beyond a reasonable doubt. These errors came

to be known as structural errors." Weaver v. Massachusetts, 582 U.S. 286, 294

(2017) (citation omitted). The "defining feature of a structural error," id. at 295, is

that it "affect[s] the framework within which the trial proceeds, rather than

simply an error in the trial process itself," Neder v. United States, 527 U.S. 1, 8

(1999) (quoting Fulminante, 499 U.S. at 310).

In Weaver, the Supreme Court identified "at least three broad

rationales" for why a particular error is not amenable to harmless error review,

and is therefore deemed structural. 582 U.S. at 295. An error "has been deemed

structural" if (1) "the right at issue is not designed to protect the defendant from

erroneous conviction but instead protects some other interest," such as "the

defendant's right to conduct his own defense" or the defendant's right to a public

trial; (2) "the effects of the error are simply too hard to measure," such as "when a

defendant is denied the right to select his or her own attorney"; and (3) "the error

8 always results in fundamental unfairness," such as "if an indigent defendant is

denied an attorney or if the judge fails to give a reasonable-doubt instruction."

Id. at 295-96, 299 (citations omitted). "In a particular case, more than one of these

rationales may be part of the explanation for why an error is deemed to be

structural." Id. at 296.

The first question is thus whether the district court's error in

excusing the twelfth juror prior to deliberations with no alternates available and

without Johnson's consent is a structural error that requires automatic reversal.

A.

Pursuant to Rule 23(b), Johnson "was entitled to be tried by a twelve-

person jury, and the district court possessed no discretion -- prior to

deliberations -- to conduct the trial with an eleven-member jury, absent

[Johnson's] consent." United States v. Curbelo, 343 F.3d 273, 278 (4th Cir. 2003). In

my view, the district court's failure to comply with Rule 23(b) is a structural error

requiring automatic reversal of Johnson's convictions.

The error here falls squarely within Weaver's second rationale for

deeming an error structural: the repercussions of this error "are simply too hard

to measure," Weaver, 582 U.S. at 295, and "are necessarily unquantifiable and

9 indeterminate," Sullivan v. Louisiana, 508 U.S. 275, 282 (1993). Simply put, an

appellate court cannot predict with any degree of certainty how an unidentified

twelfth juror, with his or her varied life experiences and personal beliefs, would

have viewed the evidence presented against Johnson and participated in

deliberations with eleven individuals from different walks of life. Cf. United

States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (holding that the erroneous

deprivation of the right to counsel of choice is structural because "[i]t is

impossible to know what different choices the rejected counsel would have

made, and then to quantify the impact of those different choices on the outcome

of the proceedings," and thus, "[h]armless-error analysis in such a context would

be a speculative inquiry into what might have occurred in an alternate

universe").

Because an appellate court cannot know what effect a twelfth juror

might have had on jury deliberations, making such a determination would be

based, inherently, on pure speculation. But convictions cannot, and should not,

be affirmed based on a reviewing court's speculation. See Sullivan, 508 U.S. at 280

("The Sixth Amendment requires more than appellate speculation about a

10 hypothetical jury's action, or else directed verdicts for the State would be

sustainable on appeal; it requires an actual jury finding of guilty.").

Moreover, unlike the quintessential "trial error" that is subject to

harmless-error review -- the erroneous admission of evidence -- this Court

cannot assess the effects of depriving Johnson of a twelve-juror verdict "in the

context of other evidence presented in order to determine whether its admission

was harmless beyond a reasonable doubt." Fulminante, 499 U.S. at 308. Given the

safeguards preventing disclosure of what goes on in the jury room, there is no

"context" when it comes to a jury's deliberative process. See United States v.

Thomas, 116 F.3d 606, 618 (2d Cir. 1997) ("As a general rule, no one -- including

the judge presiding at a trial -- has a 'right to know' how a jury, or any individual

juror, has deliberated or how a decision was reached by a jury or juror. The

secrecy of deliberations is the cornerstone of the modern Anglo-American jury

system."). Under these circumstances, it is impossible for this Court to

determine, as would be required if reviewing for harmless error, "whether the

guilty verdict actually rendered in this trial was surely unattributable to the [Rule

23(b)] error." Sullivan, 508 U.S. at 279 (emphasis in original); see also United States

v. Essex, 734 F.2d 832, 845 (D.C. Cir. 1984) ("In cases involving secret jury

11 deliberations it is virtually impossible for a defendant to demonstrate actual

prejudice. . . . We believe that prejudice is inherent when a court permits a jury of

12 to continue deliberations and return a verdict with only 11 jurors, without

making the finding required by the Rule and the stipulation.") (emphasis in

original).

Even assuming that the eleven jurors all would have voted the same

way if there had been a twelfth juror, the twelfth juror could, nonetheless, have

caused a hung jury by choosing not to abandon her own convictions or

assessment of the evidence. Of course, it is also possible that a twelfth juror

could have persuaded one or more of the other jurors to reach a different

outcome. By suggesting that the verdict in this case would been the same had

the district court's Rule 23(b) error not been made, the majority ignores the

always-possible outcome of a hung jury, which any juror, acting alone, can cause

to transpire. 4

4 The majority writes that "[h]ad the district court waited a few hours -- and dismissed the twelfth juror for cause after the jury had 'retired to deliberate' -- the district court would not have violated Rule 23(b)." Majority Op. at 17 (citing Fed. R. Crim. P. 23(b)(3)). In that scenario, the district court would have indeed followed Rule 23(b). But the point is that the district court did not follow the Rule and erred when it dismissed the twelfth juror prior to deliberations without Johnson's consent. Accordingly, what the majority casts as a "small change in timing" was, in my view, an obvious error with a prejudicial effect on Johnson. 12 Moreover, decisions of our sister circuits have held that proceeding

with an eleven-member jury without a defendant's consent prior to deliberations

is a structural error. The Fourth Circuit addressed the exact Rule 23(b) violation

at issue here and held that "[i]t is this sort of error . . . that is inherently

prejudicial and per se reversible." Curbelo, 343 F.3d at 285; see also id. ("The Rule

23(b) error in [defendant's] trial tainted the process by which guilt was

determined, and it therefore inherently casts doubt on the reliability of the jury's

verdict."). Other circuits have considered other kinds of Rule 23(b) violations --

such as proceeding with a jury of less than twelve pursuant to an oral stipulation

from the parties, see, e.g., United States v. Taylor, 498 F.2d 390, 392 (6th Cir. 1974),

or dismissing the twelfth juror without cause after deliberations had begun, see,

e.g., Essex, 734 F.2d at 845 -- and held that such violations also require reversal

without engaging in harmless-error review, see Curbelo, 343 F.3d at 283-85

(collecting cases).

For these reasons, the district court's Rule 23(b) error is structural.

B.

The majority holds that the district court's Rule 23(b) error is not

structural because "the right to a twelve-member jury is neither a constitutional

13 nor even a substantial right." Majority Op. at 14. Although the Supreme Court

initially interpreted the Sixth Amendment to preserve the right to be tried by "a

jury constituted, as it was at common law, of twelve persons," Thompson v. Utah,

170 U.S. 343, 349 (1898), the Court more recently held that the Sixth Amendment,

as applied to the states through the Fourteenth Amendment, does not require

twelve jurors for conviction, see Williams v. Florida, 399 U.S. 78, 102 (1970) ("[T]he

fact that the jury at common law was composed of precisely 12 is a historical

accident, unnecessary to effect the purposes of the jury system and wholly

without significance 'except to mystics.'" (citation omitted)). In my view,

however, Williams does not foreclose the conclusion that the error here is

structural.

The Supreme Court has never held that an error is structural only if

it affects a defendant's constitutional rights. Despite occasionally suggesting in

dicta that structural errors implicate constitutional rights, see, e.g., Neder, 527 U.S.

at 7 ("[W]e have recognized a limited class of fundamental constitutional errors

that defy analysis by 'harmless error' standards." (citation and internal quotation

marks omitted)), the Supreme Court has never explicitly held that errors must

affect a defendant's constitutional rights to qualify as structural error, see Curbelo,

14 343 F.3d at 280 n.6 (collecting cases). The observation that not every

constitutional error qualifies as structural error does not mean that only errors

premised on a constitutional deprivation can so qualify. See, e.g., Sullivan, 508

U.S. at 278 ("[W]e [have] rejected the view that all federal constitutional errors in

the course of a criminal trial require reversal."); Rose v. Clark, 478 U.S. 570, 577

(1986) (noting that the Supreme Court has "recognized that some constitutional

errors require reversal without regard to the evidence in the particular case").

Moreover, Williams involved state criminal proceedings and a

Florida statute that permitted six-person juries in non-capital criminal cases. 399

U.S. at 79-80. The Court's holding that a defendant does not have a Sixth

Amendment right to a twelve-person jury in a state criminal case where state law

provides for less than a twelve-person jury does not mean that a defendant in a

federal criminal case does not have a substantial right to a twelve-person jury

under the Federal Rules of Criminal Procedure and the long-standing tradition of

a twelve-person jury in federal criminal practice.

Likewise, the Second Circuit has not held that structural errors must

be of constitutional dimension. Rather, we have recognized that "[c]ategories of

error found by the Supreme Court to be 'structural' ordinarily relate to 'certain

15 basic, constitutional guarantees that should define the framework of any criminal

trial.'" Shabazz v. United States, 923 F.3d 82, 84 (2d Cir. 2019) (emphasis added)

(quoting Weaver, 582 U.S. at 295); see also United States v. Moran-Toala, 726 F.3d

334, 343 (2d Cir. 2013) ("Courts have recognized a limited number of structural

errors, all involving the violation of bedrock constitutional rights, such as total

deprivation of the right to counsel, exclusion of jurors on the basis of race,; and

improper closure of a courtroom to the public." (citations omitted)). But there is

no case in this Circuit where we have deemed an error to be non-structural solely

because the error was not premised on the deprivation of a constitutional right.

But see United States v. Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005)

("[G]enerally speaking structural errors must, at a minimum, be constitutional

errors."); United States v. Stevens, 223 F.3d 239, 244 (3d Cir. 2000) (stating that a

non-constitutional error "generally cannot amount to a structural defect").

As the majority points out, our Court has observed that "Williams

suggests that the absolute right to a jury of twelve . . . is no longer viewed as a

'substantial right' by the Supreme Court." Stratton, 779 F.2d at 834. We made

that observation, however, in the context of deciding whether the 1983

amendment to Rule 23(b) could be applied retroactively, without violating the Ex

16 Post Facto clause. See id. at 835 (reducing the jury size from twelve to eleven

"does not affect the substantial rights of the defendant for Ex Post Facto purposes")

(emphasis added). The district court elected to proceed with an eleven-person

jury after deliberations had already commenced when a juror was excused on the

second day of deliberations. Id. at 830-31. We held that the retroactive

application of the amendment did not violate the Ex Post Facto clause. Id. at 834.

Stratton did not hold that the right to a twelve-person jury was not a substantial

right for other purposes.

C.

The right to a twelve-person jury is, in my view, a substantial right

in the context of a federal criminal trial. Even though the Supreme Court held in

Williams that the Sixth Amendment, as applied to the states through the

Fourteenth Amendment, does not require twelve jurors for conviction, "the jury

right embodied in Rule 23(b) unquestionably has constitutional dimensions."

Curbelo, 343 F.3d at 278-79; accord Ramos v. Louisiana, 590 U.S. 83, 93 (2020)

(holding that the Sixth and Fourteenth Amendments require a unanimous jury

verdict for serious offenses in state and federal courts). Rule 23 "is a formulation

of the constitutional guaranty of trial by jury." Fed. R. Crim. P. 23, Notes of

17 Advisory Committee subd. (a). Indeed, two provisions of the Constitution relate

specifically to the right to trial by jury. See Art. III, § 2, cl. 3 ("The Trial of all

Crimes, except in Cases of Impeachment, shall be by Jury."); U.S. Const. amend.

VI. ("In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the crime

shall have been committed.").

At common law, at the time of the Sixth Amendment's adoption,

and until recent history, the right to trial by jury for serious criminal offenses

meant a trial before twelve jurors, no more no less. "[T]he general infrastructure

of the criminal jury as a twelve-member body rendering unanimous verdicts was

clearly established by" the late 14th century in England. Robert H. Miller,

Comment, Six of One is Not a Dozen of the Other: A Reexamination of Williams v.

Florida and the Size of State Criminal Juries, 146 U. Pa. L. Rev. 621, 638-39 (1998); see

also Ramos, 590 U.S. at 90 (noting that one late 14th century English decision

stated that a "'verdict, taken from eleven, was no verdict' at all" (quoting James

Bradley Thayer, A Preliminary Treatise On Evidence At The Common Law 89

n.4 (1898)). In 1769, Blackstone reiterated the common-law rule -- no person

could be found guilty of a serious crime unless "the truth of every accusation . . .

18 should afterwards be confirmed by the unanimous suffrage of twelve of his

equals and neighbours, indifferently chosen." William Blackstone, 4

Commentaries on the Laws of England 343, 552 (1769). This same common-law

rule applied in the young American colonies, see, e.g., IV. Unshrinking the Federal

Civil Jury, 110 Harv. L. Rev. 1466, 1468 (1997) ("In the American colonies, the

Charter of Jamestown established the twelve-person jury in 1607."), and well

after the Sixth Amendment's adoption, see, e.g., Joseph Story, 2 Commentaries on

the Constitution of the United States 588 (1858) ("And a trial by jury is generally

understood to mean, ex vi termini, a trial by a jury of twelve men, impartially

selected, who must unanimously concur in the guilt of the accused before a legal

conviction can be had. Any law therefore, dispensing with any of these

requisites, may be considered unconstitutional."); Foote v. Lawrence, 1 Stew. 483,

483 (Ala. 1828) ("The term jury is well understood to be twelve men . . . .")

(emphasis in original); Work v. State, 2 Ohio St. 296, 304 (1853) ("The number

must be twelve . . . ."); Cancemi v. New York, 18 N.Y. 128, 138 (1858) ("It would be a

highly dangerous innovation, in reference to criminal cases, . . . for the court to

allow any number short of a full panel of twelve jurors, and we think it ought not

to be tolerated."); Thompson, 170 U.S. at 349.

19 The majority's holding that a defendant's right pursuant to Rule

23(b) to a twelve-member jury is not a substantial right eviscerates Rule 23(b).

The majority's holding that violations of Rule 23(b) are not structural injects a

requirement of prejudice, when the rule by its terms imposes no such condition.

It means that trial judges can proceed with fewer than twelve jurors as long as

they believe the evidence is strong. Such a broad holding strips Rule 23(b) of its

intended effect -- to ensure that federal criminal cases are decided by jurors of

twelve, except in certain limited and prescribed circumstances.

An additional consideration is the length of the trial. The exception

to the requirement of a twelve-person jury was adopted for a specific reason: to

address the "dilemma" posed by cases where jurors became incapacitated during

jury deliberations in long trials. See Stratton, 779 F.2d at 831 (citing United States

v. Meinster, 484 F. Supp. 442 (S.D. Fla. 1980) (juror had heart attack during

deliberations after six months of trial), and United States v. Barone, 83 F.R.D. 565

(S.D. Fla. 1979) (juror became incapacitated during jury deliberations after six

months of trial)). Indeed, the Advisory Committee Notes to the 1983

amendments observed as follows:

If the trial has been brief and not much would be lost by retrial, the court might well conclude that the unusual step of allowing a jury verdict

20 by less than 12 jurors absent stipulation should not be taken. On the other hand, if the trial has been protracted the court is much more likely to opt for continuing with the remaining 11 jurors.

Fed. R. Crim. P. 23, Advisory Committee Notes to 1983 Amendments (emphasis

added). The Advisory Committee recognized that permitting a verdict by only

eleven jurors was an "unusual" step not to be taken lightly.

Here, of course, the trial was indeed brief. This was essentially a

two-day trial, and the government presented its entire case in the equivalent of

one full day. It would not have been a significant burden for the case to be

retried.

Notwithstanding Williams, a defendant's right to a twelve-person

jury is a substantial right, and the district court's Rule 23(b) error in this case is in

my view structural. Johnson is entitled to a new trial, without regard to the issue

of prejudice.

III.

Even if I were to conclude that the district court's violation of Rule

23(b) did not constitute structural error and therefore was subject to harmless-

error review, I would nonetheless vacate Johnson's conviction because the

21 government has failed to meet its burden of demonstrating that the error was

harmless.

Pursuant to Federal Rule of Criminal Procedure 52(a), harmless-

error review considers whether the error has "affect[ed] substantial rights." See

Fed. R. Crim. P. 52(a). When the defendant has made a timely objection to an

error and Rule 52(a) applies, the government bears the burden of demonstrating

that the error did not prejudice the defendant. See United States v. Olano, 507 U.S.

725, 734-35 (1993). In determining whether the government has met this burden,

"we ask whether we can conclude with fair assurance that the errors did not

substantially influence the jury." United States v. Gupta, 747 F.3d 111, 133 (2d Cir.

2014) (citation and quotation marks omitted). "The inquiry cannot be merely

whether there was enough [evidence] to support the result, apart from the phase

affected by the error. It is rather, even so, whether the error itself had substantial

influence. If so, or if one is left in grave doubt, the conviction cannot stand."

Kotteakos, 328 U.S. at 765.

The majority rejects Johnson's contention that "the case was close."

Majority Op. at 20. It further contends that "[t]he conduct of the jury did not

22 indicate that there was significant disagreement over Counts One, Two, and

Four." Id. at 20. I disagree.

While it is impossible to know with any certainty what actually

happened during the deliberations, there are several indications that this was in

fact a close case. First, there was a split verdict -- although the four counts were

similar in nature and the government presented nearly identical evidence on

each count, the jury convicted on three counts and acquitted on one count.

Second, although the presentation of evidence took only the equivalent of one

day, the jury took more than two days to return a full verdict -- it deliberated for

more than two hours the first day and until after 5 p.m. on both the second and

third days. Even with respect to the three counts of conviction, the jury took

more than a day to reach a verdict. Third, the jury sent out notes suggesting that

it was having some difficulty -- one inquiring about mental illness and another

indicating that it could not reach a consensus on one count. Fourth, the

foreperson reiterated in open court that the jury did not believe it could reach a

consensus on one count. These are all indications that the jury struggled to reach

a verdict. A twelfth juror could very well have tipped the balance or brought

about a deadlock.

23 The nature of the crimes charged is significant. As the government

acknowledges, the case did not depend on the jury's evaluation of witness

credibility. Rather, the question was what was in Johnson's mind -- whether the

statements were a serious expression of an intent to kill. The evidence central to

the government's case was Johnson's videos of Gutfeld, Senator Manchin,

Representative Boebert, and Ingraham appearing on Fox News and his

statements recorded therein. These videos were made by Johnson alone in his

own home in early 2021, and they showed the four subjects as they each

appeared on live television to discuss various political issues. In each video

Johnson made similar, but not identical, statements about killing one of the

subjects. The videos were posted on Johnson's own Instagram account, as to

which he had only one follower, and which was registered to his actual phone

number.

The district court properly instructed that, to constitute a "true

threat," the jury had to conclude beyond a reasonable doubt that "a reasonable

person who heard or read the statement would understand it as a serious

expression of an intent to inflict bodily injury or to kill." App'x at 498. The

district court also informed the jury that it could make this determination by

24 considering the "context in which [the statement] was made, the language that

the defendant used, the reaction of those who heard or learned of the statement,

and the effect, if any, on the subject." Id. Jurors are entitled, of course, to rely on

their common knowledge and life experience in drawing inferences and reaching

conclusions. See United States v. Huezo, 546 F.3d 174, 182 (2d Cir. 2008); Dawson v.

Delaware, 503 U.S. 159, 171 (1992) (Thomas, J., dissenting) ("Jurors do not leave

their knowledge of the world behind when they enter a courtroom . . . .").

Johnson's conduct was manifestly erratic, and it is not at all

surprising that the jurors raised the issue of his mental stability. A reasonable

jury surely could have concluded that no reasonable person would understand

Johnson's statements in context as genuinely expressing an intent to kill. He

made the statements when he was home alone watching television, in the midst

of the COVID-19 pandemic, while ranting in response to content he was viewing

on political news programs. He posted the videos to his own Instagram account,

without any detail as to when or how he would carry out the threats, and

without any evidence that he took any steps to follow through. Accordingly, in

my view, the government's evidence here was not strong. See United States v.

McCallum, 584 F.3d 471, 478 (2d Cir. 2009) ("We have repeatedly held that the

25 strength of the government's case is the most critical factor in assessing whether

error was harmless.").

Even if the government offered "enough [evidence] to support the

result," harmless-error review requires more. See Kotteakos, 328 U.S. at 765;

Gupta, 747 F.3d at 133. Again, it is the government's burden to show that the

error was harmless, and it has failed to meet that burden here.

IV.

Johnson's convictions should be vacated because the district court

deprived him of a verdict of twelve jurors, absent his consent. Such an error is

structural, or in the alternative, prejudiced Johnson. I therefore dissent from the

majority's decision to affirm the verdict of the eleven-member jury.