21-1562-cr United States v. Watson
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of December, two thousand twenty-two.
PRESENT: SUSAN L. CARNEY, JOSEPH F. BIANCO, MYRNA PÉREZ, Circuit Judges. _____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 21-1562-cr
RONELL WATSON,
Defendant-Appellant. _____________________________________
FOR APPELLEE: FRANCISCO J. NAVARRO, Assistant United States Attorney (Kevin Trowel, Assistant United States Attorney, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.
FOR DEFENDANT-APPELLANT: DANIEL HABIB, Federal Defenders of New York, Inc., New York, NY. Appeal from a judgment of conviction of the United States District Court for the Eastern
District of New York (Kuntz, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Ronell Watson appeals from a judgment of conviction, entered
against him on June 21, 2021, following a jury trial. Watson was found guilty of: (1) attempted
murder of a federal officer, in violation of 18 U.S.C. §§ 1114(3) and 1113; (2) assault of a federal
officer through the use of a weapon and the infliction of bodily injury, in violation of 18 U.S.C. §
111(a)(1), (b); and (3) possession and discharge of a firearm during a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(i), (iii). These convictions related to Watson’s shooting of FBI Special
Agent Christopher Harper (“Special Agent Harper”), who was on duty in an unmarked car in front
of Watson’s residence in Brooklyn while conducting surveillance on a nearby home. Watson hit
Special Agent Harper with one shot in his back as he drove away, seriously injuring him, and also
hit the rear of the car. At trial, Watson’s counsel did not dispute that Watson shot Special Agent
Harper, but rather principally argued that Watson felt he was in danger because he did not know
that Special Agent Harper was a law enforcement officer when he approached the unmarked car
parked in front of his residence and the car suddenly sped away. Thus, the defense argued that
Watson lacked any intent to murder and acted in self-defense when he made the split-second
decision to shoot. Subsequent to the jury’s guilty verdict on all three counts, Watson was sentenced
to 382 months’ imprisonment followed by three years of supervised release.
On appeal, Watson argues that: (1) the district court erred in denying his motion for a new
trial because he was prejudiced by an ex parte interaction between the courtroom deputy and the
jurors during trial regarding safety concerns; (2) the district court’s self-defense instruction was
2 erroneous because it did not specifically provide that Watson could use deadly physical force to
prevent a perceived robbery or burglary and did not advise the jurors to consider his physical
attributes and prior experiences in assessing the reasonableness of his belief about his physical
safety; and (3) the district court’s statements at sentencing extolling Special Agent Harper reflected
improper considerations in determining the appropriate sentence and thereby constituted
procedural error and a violation of due process. We assume the parties’ familiarity with the
underlying facts and procedural history, which we reference only as necessary to explain our
decision to affirm.
I. Ex Parte Communication with the Jurors
Watson argues that the district court erred in denying his motion for a new trial because his
right to be present at every stage of trial was violated by an ex parte communication about
courtroom safety between the courtroom deputy and the jurors, which occurred outside the
presence of the parties. The circumstances surrounding this interaction can be summarized as
follows: After trial adjourned for the day, one of the jurors approached the courtroom deputy
expressing concerns about the use of cellphones in the courtroom by individuals she believed to
be Watson’s family members, whom she described as “three black people in the front.” App’x at
1063. Other jurors also expressed concern that Watson’s family members could photograph them
during trial. The courtroom deputy noted that the individuals identified by the jurors may have
been allowed to keep their cellphones because they were attorneys, court staff, or inhouse news
reporters, but the jurors insisted that those individuals were Watson’s family members. The
courtroom deputy advised the jurors that he would discuss their concerns with the judge.
As set forth below, although this ex parte interaction between the courtroom deputy and
the jurors regarding their courtroom security concerns was improper, we conclude that the district
3 court did not abuse its discretion in denying the motion for a new trial, given its assessment of the
potential prejudice against Watson and, in particular, the district court’s careful and thorough voir
dire of the jurors following the interaction.
A district court may vacate a judgment of conviction and grant a new trial “if the interest
of justice so requires.” Fed. R. Crim. P. 33. We review a district court’s denial of a motion for a
new trial for abuse of discretion, upholding findings of fact that were made in the course of
deciding the motion unless they are clearly erroneous. United States v. Stewart, 433 F.3d 273, 295
(2d Cir. 2006).
“A defendant in a criminal case has the right, rooted in the Sixth Amendment Confrontation
Clause and Fifth Amendment Due Process Clause, to be present at every trial stage.” United States
v. Mehta, 919 F.3d 175, 180 (2d Cir. 2019). “The right to be present has been extended to require
that messages from a jury should be disclosed to counsel and that counsel should be afforded an
opportunity to be heard before the trial judge responds.” Id. (quoting United States v. Mejia, 356
F.3d 470, 474 (2d Cir. 2004)). Accordingly, the district court should not respond to a jury concern
about the case in an ex parte manner. See id. at 181. This rule applies not only to jury inquiries
during deliberations, but also to any jury concerns about the case raised during the trial. See, e.g.,
id. at 178, 180–82 (applying this rule to safety concerns that jurors raised orally during trial).
Nevertheless, “[n]ot every violation of a defendant’s right to be present will result in
reversal.” United States v. Collins, 665 F.3d 454, 460 (2d Cir. 2012). Instead, an ex parte
communication in response to a jury inquiry “may be considered harmless error where the
communication cannot be said to have prejudiced the defendant.” See Mejia, 356 F.3d at 476; see
also United States v. Henry, 325 F.3d 93, 106–08 (2d Cir. 2003) (holding that the district court’s
failure to fully disclose the contents of the jury note did not warrant reversal because this error did
4 not prejudice the defendant); Mehta, 919 F.3d at 181–82 (quoting United States v. Gagnon, 470
U.S. 522, 526 (1985) (stating that a district court may “take action to mitigate the prejudicial effects
of the ex parte meeting” and that “[t]he mere occurrence of an ex parte conversation between a
trial judge and a juror does not constitute a deprivation of any constitutional right”)).
Here, we find no abuse of discretion in the district court’s determination that the ex parte
interaction between the courtroom deputy and the jurors did not prejudice Watson. 1 The district
court implemented a thorough procedure to determine whether there was any prejudice to Watson
from that interaction. In particular, after receiving and sharing with the parties the courtroom
deputy’s memorandum summarizing his interaction with the jurors, the district court promptly held
sealed in camera proceedings, during which it admitted the memorandum into the record and heard
from the defense and prosecution as to how to proceed. The district court then conducted an
individual voir dire of each juror in the presence of defense counsel and the prosecutors to
determine whether the jurors could remain fair and impartial in light of the concerns raised during
their interaction with the courtroom deputy. The questions utilized by the district court during the
voir dire were taken from a list of questions developed and approved by counsel for both sides. 2
In response to the district court’s questions, each juror confirmed that nothing said during the ex
parte discussion with the courtroom deputy undermined their ability to presume Watson’s
1 The parties disagree over whether the courtroom deputy’s ex parte interaction with the jurors should be regarded as “‘presumptively prejudicial.’” See Sher v. Stoughton, 666 F.2d 791, 793 (2d Cir. 1981) (quoting Remmer v. United States, 347 U.S. 227, 229 (1954)). We need not address this issue because, even assuming arguendo that a presumption of prejudice applies to this interaction, we conclude that the government, through the district court’s findings following a careful voir dire of the jurors, has rebutted that presumption. See Remmer, 347 U.S. at 229–30 (“The trial court . . . should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.”). 2 Although Watson was not present during these in camera proceedings, his counsel waived his appearance and Watson does not challenge his non-appearance on appeal.
5 innocence and that they could remain fair and impartial. The district court found all sixteen jurors
to be credible in their responses to the questions. Despite the defense’s argument that the jurors’
concerns about being photographed by Watson’s family during trial suggested that they believed
Watson to be guilty, the district court found that the jurors’ desire to protect their privacy and
anonymity was not incompatible with their ability to continue presuming Watson’s innocence.
Having reviewed the record, we see no reason to disturb the district court’s findings regarding the
jurors’ credibility and impartiality. See United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2002)
(stating that the district court’s determination regarding a juror’s bias will not be overturned
“absent clear error”); United States v. Torres, 128 F.3d 38, 44 (2d Cir. 1997) (“Given the special
capacity of the trial judge to evaluate actual bias on the part of prospective jurors, that judge’s
determination in this regard is accorded great deference . . . .”); United States v. Ploof, 464 F.2d
116, 118 (2d Cir. 1972) (“[T]he judge was in the best position to evaluate the juror’s demeanor
and to determine, by the juror’s answers to the judge’s questions, whether he could fairly and
impartially hear the case and return a verdict based solely on the evidence presented in court.”).
To the extent Watson suggests that the district court did not inquire about or address any
potential prejudice resulting from the jurors’ safety concerns, we disagree. As an initial matter,
many jurors did not even mention having any safety concerns. Moreover, those who expressed
some concerns about safety explained during the voir dire that their concerns had been addressed
and therefore would not impact their ability to be fair and impartial. For example, Juror Four noted
that she was concerned about the use of cellphone cameras in the courtroom, but then told the
district court, “now that you’re telling me it’s a nonevent, I really don’t have a problem with that.”
App’x at 314. She added, “[i]t was never about the case or the defendant or anything like that, it
was about what I was observing.” Id. Similarly, although Juror Eight had expressed safety
6 concerns to the courtroom deputy about the ability of someone to take a photograph in the
courtroom, she indicated during the individual voir dire that she had no continuing concerns. Juror
Fifteen was also questioned about her safety concerns and indicated she was “definitely going in
with an open mind” and “would definitely continue to be fair and impartial.” App’x at 410–11.
Based upon our review of the questioning of the jurors, we conclude that the district court
adequately assessed any potential prejudice to Watson that could have resulted from juror safety
concerns. 3
In sum, the district court’s thorough questioning of the jurors in consultation with both
parties and its findings following questioning were sufficient to ensure that the courtroom deputy’s
interaction with the jurors had not prejudiced Watson. See, e.g., Sher, 666 F.2d at 794–95 (finding
no prejudice to the defendant where, after an anonymous caller communicated with the jurors, the
district court notified the parties and promptly conducted individual voir dire, during which each
juror assured the district court that he or she could remain impartial). Accordingly, the district
court did not abuse its discretion in denying Watson’s motion for a new trial.
II. Self-Defense Instruction
Watson argues that the district court’s self-defense instruction was erroneous because: (1)
it did not specifically advise the jury that Watson could use deadly force in response to a burglary
3 Although Watson also challenges the district court’s individual voir dire on the basis that the district court “did not ask any questions about race,” Appellant’s Br. at 41, we find that argument similarly unpersuasive. As an initial matter, Watson did not request that the district court ask such questions. Furthermore, the defense objected to only one of the jurors as exhibiting potential racial bias—Juror Four, who initially approached the courtroom deputy with concerns about the cellphone use. After giving both the defense and the prosecution an opportunity to respond, the district court concluded that the concerns about cellphone use expressed by Juror Four were not motivated by racial considerations. In short, on this record, we find no error in the district court’s handling of any potential concerns of racial bias on the part of the jurors. See United States v. Peterson, 385 F.3d 127, 134 (2d Cir. 2004) (“A district court’s investigation of juror misconduct or bias is a delicate and complex task. Therefore, a trial judge has broad flexibility in such matters, especially when the alleged prejudice results from statements by the jurors themselves, and not from media publicity or other outside influences.” (internal quotation marks and citations omitted)).
7 or a robbery; and (2) it did not advise the jury to consider whether his physical attributes (such as
impaired vision) and prior experiences (such as his experiences as a robbery victim and knowledge
of burglaries in the neighborhood) could provide a reasonable basis for his belief that Special
Agent Harper intended to harm him. 4 As set forth below, we conclude that there is no basis to
reverse the convictions based upon the content of the self-defense instruction.
“We review challenges to jury instructions de novo but will reverse only where the charge,
viewed as a whole, demonstrates prejudicial error.” United States v. Rivera, 799 F.3d 180, 186
(2d Cir. 2015) (internal quotation marks omitted). “Instructions are erroneous if they mislead the
jury as to the correct legal standard or do not adequately inform the jury of the law.” United States
v. Cabrera, 13 F.4th 140, 146 (2d Cir. 2021).
“Because the law pertaining to self-defense is a matter of federal common law, we find it
appropriate to look to state court decisions for guidance.” United States v. Melhuish, 6 F.4th 380,
396–97 (2d Cir. 2021); see Jackson v. Edwards, 404 F.3d 612, 621–28 (2d Cir. 2005) (examining
the law of self-defense under New York Penal Law § 35.15). Under New York law, an instruction
on self-defense “is warranted whenever there is evidence to support it,” and the prosecution bears
the burden of disproving it beyond a reasonable doubt. See Davis v. Strack, 270 F.3d 111, 124 (2d
Cir. 2001) (citing, inter alia, N.Y. Penal Law §§ 25.00(1), 35.00)). “[I]f on any reasonable view
4 The district court’s instruction to the jury on self-defense provided in relevant part:
The law recognizes the right of a person who is not the aggressor to stand his ground and use force to defend himself or another. However, he may use only such force as is reasonably necessary to defend himself or another person against the imminent use of unlawful force. The question is: Would a reasonable person faced with the same facts and circumstances that confronted the defendant at the time of their occurrence have believed that he was in imminent danger of death or grievous bodily injury, such that it was necessary for him to use in his defense, in order to avoid such death or injury, the force or means that might cause the death of his assailant?
App’x at 839.
8 of the evidence, the fact finder might have decided that the defendant’s actions were justified . . .
. the trial court should instruct the jury as to the defense and must when so requested.” Id. (quoting
People v. Padgett, 60 N.Y.2d 142, 144–145 (1983)); see also United States v. Dove, 916 F.2d 41,
47 (2d Cir. 1990) (“[A] criminal defendant is entitled to instructions relating to his theory of
defense, for which there is some foundation in the proof, no matter how tenuous that defense may
appear to the trial court.”). In contrast, “if, after a hearing, the court finds that the defendant’s
evidence is insufficient as a matter of law to establish the defense, the court is under no duty to
give the requested jury charge.” United States v. Zayac, 765 F.3d 112, 120 (2d Cir. 2014)
(alterations omitted).
Under New York law, a person may use “physical force upon another person” when he
“reasonably believes such to be necessary to defend himself” from what he “reasonably believes
to be the use or imminent use of unlawful physical force by such other person.” N.Y. Penal Law
§ 35.15(1). Moreover, a person may use “deadly physical force upon another person” when he
“reasonably believes that such other person is committing or attempting to commit” a robbery or
a burglary. N.Y. Penal Law §§ 35.15(2)(b)–(c), 35.20(3). The law of self-defense contains both
subjective and objective elements. See People v. Goetz, 68 N.Y.2d 96, 110–12 (1986). However,
a person is not justified in using deadly physical force if that person is the “‘initial aggressor’: the
first person in an altercation who uses or threatens the imminent use of deadly physical force.”
People v. Brown, 33 N.Y.3d 316, 320 (2019); see N.Y. Penal Law § 35.15(1)(b) (providing that
the justification of self-defense is not available to an “initial aggressor” unless he “has withdrawn
from the encounter and effectively communicated such withdrawal to such other person but the
9 latter persists in continuing the incident by the use or threatened imminent use of unlawful physical
force”).
Here, the district court instructed the jury that a person may use physical force as is
reasonably necessary to defend himself against the imminent use of unlawful force. Watson
argues, however, that the district court erred by failing to separately instruct the jury that a person
can use deadly physical force against another person when he reasonably believes the other person
is committing or attempting to commit a robbery or a burglary and that he was prejudiced by the
omission. We disagree.
The uncontroverted evidence introduced at trial, including video surveillance footage,
established that Watson drove towards Special Agent Harper’s parked car, then exited his car with
a firearm, approached Special Agent Harper who was in the driver’s seat with his window up, and
shot Special Agent Harper as he attempted to speed away. Even construing the trial evidence most
favorably to Watson, no rational jury could find that it was objectively reasonable for Watson to
believe, at the time he fired shots at the departing car, that Special Agent Harper was committing
or attempting to commit a robbery or a burglary, or that Watson’s reaction was that of a reasonable
person acting in self-defense. See Zayac, 765 F.3d at 120 (emphasizing that a defendant is entitled
to a duress instruction only if the defense has “a foundation in the evidence” (internal quotation
marks omitted)); see also People v. Patterson, 176 A.D.3d 1637, 1639 (4th Dep’t 2019) (rejecting,
based upon a review of surveillance footage, “defendant’s contention that a reasonable person
could have believed that the victim was committing or attempting to commit a . . . robbery at the
time defendant fired his weapon” and concluding no instruction on that issue was necessary
(internal quotation marks omitted)); People v. Brunson, 68 A.D.3d 1551, 1554 (3rd Dep’t 2009)
(rejecting a challenge to the self-defense instruction because “no reasonable view of the evidence”
10 supported the conclusion that the defendant’s assault of the victim was a reasonable response to a
threat that the defendant claimed existed). Such a conclusion could only be reached by ignoring
the “imminence” requirement. Therefore, given the lack of an evidentiary foundation for this
particular defense theory, the district court did not err in declining to give a separate “robbery or
burglary” instruction.
Pursuant to the more general self-defense instruction given to the jury by the district court,
Watson argued to the jury that he reasonably believed he was in physical danger, apart from
whether it was reasonable to believe that Special Agent Harper attempted to rob or burglarize him
as the car sped away. See, e.g., App’x at 896 (defense counsel arguing to the jury in summation
that “if, when you approach that car with your empty hand outstretched, the driver responds by
flooring the gas pedal, it would be natural that you would firmly, sincerely, but mistakenly perceive
the occupant in that car as a danger and a threat”); id. at 890 (“You’re starting from a place that
when [Watson] fired those shots, from his perspective, knowing what he knew, and not knowing
who was in that car, whether they were armed and whether or not they might turn around and fire
on him as [Special Agent Harper] peeled out in that split second[;] he was not intending to kill
anyone and that he just used reasonable force to drive away and inadvertently hit that car while
lawfully defending himself.”).
Watson contends that the district court erred by failing to specifically instruct the jury to
consider Watson’s physical attributes and prior experiences, including evidence regarding his
visual impairment, his prior experiences as a victim of robberies, and his knowledge of burglaries
in the area. To be sure, New York courts “have frequently noted that a determination of
reasonableness must be based on the ‘circumstances’ facing a defendant or his ‘situation,’”
including “physical attributes of all persons involved, including the defendant,” and “any prior
11 experiences he had which could provide a reasonable basis for a belief that another person’s
intentions were to injure or rob him or that the use of deadly force was necessary under the
circumstances.” Goetz, 68 N.Y.2d at 114; see also Leonard B. Sand et al., 1 Modern Federal Jury
Instructions—Criminal, ¶ 8.08, Instr. 8–9 (explaining that, with respect to the defendant’s belief
regarding the danger, “[t]he law requires that there must be reasonable grounds for such belief,
based on the conduct of the victim and all the facts and circumstances surrounding and preceding
the encounter and the relationship between the person killed and the defendant”); Criminal Jury
Instructions (New York), Second Edition, PL 35.15(2)(B), at 2 (explaining that “[t]he
determination of whether a person reasonably believes a certain circumstance to be true” requires,
inter alia, consideration of whether “a ‘reasonable person’ in defendant’s position, knowing what
the defendant knew and being in the same circumstances, would have had those same beliefs”
(emphasis omitted)).
Here, consistent with New York law, the district court instructed the jury that, in assessing
whether Watson was entitled to use physical force in self-defense, the jury must consider whether
“a reasonable person faced with the same facts and circumstances that confronted the defendant at
the time of their occurrence [would] have believed that he was in imminent danger of death or
grievous bodily injury.” App’x at 839. Although the district court did not specifically reference
the jury’s ability to consider the defendant’s physical attributes and prior experiences, we conclude
that the failure to do so (even assuming it was error) was harmless. The instruction, as given, was
broad enough to include such considerations. See, e.g., People v. Hagi, 169 A.D.2d 203, 211 (1st
Dep’t 1991) (rejecting challenge to the self-defense instruction and explaining that, “in directing
the jury to consider ‘the circumstances of this case as you find them to be’, the court clearly
directed the jurors to take into account defendant’s particular circumstances” even if the instruction
12 did not specify the types of circumstances that the jury could consider); see also United States v.
Ford, 435 F.3d 204, 210 (2d Cir. 2006) (“We do not review portions of jury instructions in
isolation, but rather consider them in their entirety to determine whether, on the whole, they
provided the jury with an intelligible and accurate portrayal of the applicable law.” (alteration
adopted) (internal quotation marks omitted)). 5
Moreover, defense counsel argued during summation these specific factors—at length—to
the jury. For example, defense counsel repeatedly argued that the jurors needed to consider
Watson’s visual impairment in assessing the reasonableness of his perception of the danger as
Special Agent Harper’s car sped away. See, e.g., App’x at 887 (“Ronell Watson’s loss of vision
is important because it not only bears on what he was able to perceive and see in those moments,
it shows why he might feel particularly vulnerable and feel the need to protect himself in that split
second as he reacted to [Special] Agent Harper’s flooring of the gas and screeching in front of
him.”). Similarly, defense counsel argued that both Watson’s prior experience as a robbery victim
and his knowledge of burglaries in the area reasonably heightened his perception as to the nature
of the imminent danger he faced, even if that perception was mistaken. See, e.g., App’x at 895–
96 (highlighting that the jurors should place themselves in Watson’s situation and imagine that
“you have been robbed multiple times and you live in a neighborhood prone to burglaries and you
live in a house that stands out in your neighborhood”). Indeed, at one point in the defendant’s
5 Although Watson relies on People v. Wesley, 76 N.Y.2d 555 (1990) to support his position, that case is distinguishable. The trial court in Wesley not only failed to instruct the jury that they could consider the defendant’s characteristics and prior experiences in assessing the reasonableness of his belief regarding danger, but also (unlike the district court here) did not even instruct the jury that reasonableness should be assessed from the standpoint of the circumstances confronting the defendant at the time of the incident. 76 N.Y.2d at 559–60 (“In this case, the jury was never instructed that they should assess the reasonableness of defendant’s belief that he was in deadly peril by judging the situation from the point of view of defendant as though they were actually in his place.”).
13 summation of the case, defense counsel specifically mentioned that such factors could be
considered under the district court’s broad instruction on reasonableness:
The Government has to prove beyond a reasonable doubt that Ronell Watson wasn’t reacting to a perceived threat, didn’t believe he was defending himself. And that’s as to either charge. You have to find that they proved those things to you beyond a reasonable doubt. And when you’re doing that and when you’re thinking about how he reacted, you have to think about the circumstances as Ronell Watson reasonably believed them, including his difficulty with his vision, including his knowledge of burglaries in the area, including his history of being a robbery victim, and you have to decide if he was acting out of fear that Agent Harper was casing his house and posed an imminent danger and he was acting in self-defense as Judge Kuntz will define it.
App’x at 925. In its rebuttal summation, the government did not suggest that these factors could
not be considered by the jury under the district court’s anticipated self-defense instruction, but
rather argued that there was a lack of evidence to support these arguments.
Under these circumstances and given the overwhelming evidence disproving the
defendant’s tenuous self-defense theory, any alleged error in failing to give a more specific
instruction regarding particular factors (such as the defendant’s physical attributes and prior
experiences) under the reasonableness standard was harmless. See United States v. Levy, 578 F.2d
896, 903 (2d Cir. 1978) (concluding that the error in the jury instruction was harmless because
there was “an abundance of evidence pointing to the defendant’s guilt”); see also People v. Petty,
7 N.Y.3d 277, 286 (2006) (finding that “the error in the trial court’s justification charge was
harmless” because “there was overwhelming evidence disproving the justification defense” and
“show[ing] that defendant was the initial and only aggressor,” thus leaving “no reasonable
possibility that the verdict would have been different had the charge been correctly given”).
Accordingly, we find no basis to disturb the convictions on this ground.
14 III. Sentencing
Watson does not challenge the substantive reasonableness of his sentence, but rather asserts
that the district court committed procedural error and violated due process by relying upon Special
Agent Harper’s personal virtues in determining the appropriate sentence. More specifically,
Watson contends that, after Special Agent Harper and his wife spoke at sentencing, “the district
court concluded its remarks with fulsome praise for Harper’s ‘heroism’—in contrast to the
‘cowardly and unjustified’ Watson—lauding Harper as ‘the steadfast embodiment of his fellow
peace officers who day after day make our streets safer’ and ‘our homes more secure.’”
Appellant’s Br. at 3–4 (quoting App’x at 1202–03). Furthermore, Watson notes that, at the
conclusion of the sentencing, the district court stated to Special Agent Harper, “You have our back
and this court promises you the law will always have your back and that of your wife and that of
your children.” App’x at 1203–04. Watson contends that, “[i]n relying on these impermissible
factors, unrelated to Watson’s legal culpability, the court committed procedural error and violated
Watson’s due process right to an impartial judge.” Appellant’s Br. at 4.
“We review a criminal sentence for reasonableness, which ‘amounts to review for abuse of
discretion.’” United States v. Kourani, 6 F.4th 345, 356 (2d Cir. 2021). “This standard applies
both to the substantive reasonableness of the sentence itself and to the procedures employed in
arriving at the sentence.” United States v. Rigas, 583 F.3d 108, 114 (2d Cir. 2009) (alterations
adopted) (internal quotation marks omitted). A district court’s reliance on an impermissible factor
renders a sentence procedurally unreasonable. See United States v. Park, 758 F.3d 193, 199 (2d
Cir. 2014). Because Watson did not object to the alleged procedural error during sentencing, we
review only for “plain error.” See United States v. Rosa, 957 F.3d 113, 117 (2d Cir. 2020). To
show plain error, a defendant must show that: “(1) there is an error; (2) the error is clear or obvious,
15 rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights;
and (4) the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 117–18.
We find no basis to conclude that the district court erred by relying upon any improper
considerations in determining Watson’s sentence. At sentencing, Special Agent Harper and his
wife spoke to the district court pursuant to the Victims’ Rights Act and described the devastating
physical and emotional harm that the shooting had on them and their family. Special Agent Harper
spoke about the surgeries he underwent, including the one to remove the bullet lodged in his chest,
and the “numerous large scars in [his] torso which serve[] as a daily reminder” of what he endured.
App’x at 1173–74. He further emphasized that “[t]he emotional pain . . . is in many ways worse
than the physical pain.” App’x at 1174. Special Agent Harper’s wife likewise described her
“paranoia” following the shooting, which resulted in her being “fearful every time [she] left the
house, suspicious of every car that drove by,” and led to “panic attacks” that made “it difficult to
enjoy being with [her] kids.” App’x at 1172.
The district court’s decision to address Special Agent Harper at sentencing as the victim of
Watson’s crimes is consistent with the guidance of Rule 32, which provides that, “the court must
address any victim of the crime who is present at sentencing and must permit the victim to be
reasonably heard” before imposing the sentence. Fed. R. Crim. P. 32(i)(4)(B); see also 18 U.S.C.
§ 3771(a)(4) (providing that victims have “[t]he right to be reasonably heard” at sentencing
hearings). Moreover, the mere fact that the district court praised the courage, heroism, and
dedicated public service of the victim, and compared those virtues to the defendant’s violent
conduct, does not reflect reliance on any improper consideration at sentencing or a judicial bias.
See, e.g., United States v. Mangone, 652 F. App’x 15, 18 (2d Cir. 2016) (summary order) (citing
16 Liteky v. United States, 510 U.S. 540, 555 (1994)) (“[T]he judge’s comments on her personal
reaction to [the defendant’s] crimes are best taken as a rhetorically emphatic way of expressing a
legitimate negative view of his conduct, and they do not show that the court harbored any personal
bias against [the defendant].”).
Furthermore, the sentencing factors under 18 U.S.C. § 3553(a) allow for consideration of
the impact of the criminal conduct on the victim, including “the need for the sentence imposed . .
. to reflect the seriousness of the offense . . . and to provide just punishment for the offense.” Id.
at § 3553(a)(2)(A); see also United States v. Bradley, 812 F.2d 774, 781 (2d Cir. 1987) (“[I]t goes
without saying that the effects of the criminal’s activities on his victims is another major, and
wholly legitimate, subject of the sentencing judge’s consideration . . . . [W]e find no support for
the claim that the sentencing judge stepped beyond the bounds of his discretion in his evaluation
of the information before him or in his concern for the victims of [the defendant’s] repeated
violations of the law.”). In addition, the sentencing judge may consider the need for the sentence
“to afford adequate deterrence to criminal conduct” and “to protect the public from further crimes
of the defendant,” which would include protecting law enforcement officers who are seriously
injured by violent conduct in the performance of their official duties. 18 U.S.C. §§ 3553(a)(2)(B)–
(C).
Here, as set forth in the sentencing transcript, the district court meticulously discussed each
of the Section 3553(a) factors in explaining the reasons for its sentence. See generally United
States v. Robinson, 702 F.3d 22, 39 (2d Cir. 2012) (examining “[t]he clear import of the District
Court’s remarks, taken as a whole” in determining whether there was procedural error at
sentencing). Although it may have been unnecessary and unhelpful for the district court to then
stray from the language of Section 3553(a) in a rhetorical way during its closing remarks after
17 carefully analyzing the statutory factors, such as by noting that “the law will always have [the
victim’s] back,” App’x at 1204, we conclude on this record that the comments do not reflect a
plain procedural error nor a judicial bias. See also United States v. Bermúdez–Meléndez, 827 F.3d
160, 165 (1st Cir. 2016) (“While the court may have engaged in hyperbole, sentencing courts are
entitled to broad latitude in their linguistic choices. Consequently, gratuitous rhetorical flourishes,
without more, will not render a sentence infirm.”). Accordingly, because Watson has not shown
that the district court plainly erred, we affirm the sentence of the district court. 6
* * *
We have considered all of Watson’s remaining arguments and find them to be without
merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
6 Because we have rejected Watson’ various challenges on appeal and affirm the judgment, we need not address Watson’s argument that the case should be re-assigned to a different judge on remand.