United States v. Frank Nucera, Jr.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-2115

UNITED STATES OF AMERICA

v.

FRANK NUCERA, JR.,

Appellant

_____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(District Court No.: 1-17-cr-00532-001)

District Judge: Hon. Robert B. Kugler

_____________________________________

Argued November 7, 2022

(Filed May 5, 2023)

Before: JORDAN, SCIRICA, and RENDELL, Circuit

Judges.

Rocco C. Cipparone, Jr.,Esq. [Argued]

Rocco C. Cipparone, Jr.,

Law Offices

157 Bridgeton Pike

Suite 200-320

Mullica Hill, NJ 08062

Counsel for Appellant

Sabrina G. Comizzoli, Esq. [Argued]

Mark E. Coyne, Esq.

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellees

_________

OPINION OF THE COURT

_________

RENDELL, Circuit Judge.

Trial evidence often divides jurors. In a trial about race

with jurors of different races, that division can be explosive.

Frank Nucera, Jr. says those divisions ran so deep in his trial

that they tainted the verdict, and he seeks a new trial or an

evidentiary hearing to probe what happened. To support his

claim, Nucera offers only post-verdict affidavits from jurors

who say they experienced racial vitriol, intimidation, and other

misconduct that occurred during the jury deliberations.

2

When parties challenge a verdict, Federal Rule of

Evidence 606(b) bars a court from considering a juror’s

statement or affidavit unless it satisfies either an exception in

the Rule or a constitutional exception created by the Supreme

Court in Peña-Rodriguez v. Colorado, 580 U.S. 206 (2017),

for evidence of racial bias. But the latter exception is narrow

and specific: it requires a clear statement that a juror voted for

conviction based on racial animus toward, or stereotypes

about, the defendant.

Nucera was charged with committing a hate crime,

depriving another of his civil rights, and making false

statements to the FBI, all associated with actions he took as a

police officer arresting a man named Timothy Stroye. His

evidence of purported juror misconduct shows heated

deliberations with racial tensions playing a major role.

Credibility determinations were crucial, and jurors divided

deeply over whom and what to believe. But none of his

evidence satisfies the exceptions in Rule 606(b). Nor does it

show that what happened here fits the exception in Peña-

Rodriguez. Lacking the clear statement that Peña-Rodriguez

requires, Nucera urges that we should widen the exception to

include the conduct here. That we cannot do. So we will affirm

the District Court’s denial of Nucera’s motion for a new trial,

and an evidentiary hearing, based on juror misconduct.

We will also affirm the District Court’s ruling that

limited Nucera’s use of the victim’s out-of-court statement and

3

the Court’s later instructions to the jury about unanimity.1 But

we agree with Nucera that the District Court erred in

sentencing him, so we will vacate the District Court’s

sentencing order and remand for further proceedings consistent

with this opinion.

I. NUCERA ’S TRIAL

A. Jury Selection

When the trial began, the District Court conducted voir

dire of potential jurors and briefly described some of the

evidence jurors would hear in the case. Jurors would “hear

testimony that the defendant Mr. Nucera used racial epithets

[that] included the N-word.” App. 149. And they would hear

Nucera “allegedly used excessive force” against a Black man

named Timothy Stroye during Stroye’s arrest because Nucera

was “racially motivated” to do so. App. 149. So the District

Court stressed the need for jurors to decouple “[Nucera’s]

use of . . . the racial epithets” from the allegations of

“excessive force [and] racial motivation” because Nucera’s

bad language was not “in and of itself a crime.” App. 149–50.

On the second day of jury selection, the District Court

and the parties questioned Pamela Richardson, a Black woman

and former pharmaceutical sales rep who retired because of a

long-term disability. Like other prospective jurors, Richardson

1

As we discuss below, the District Court excluded the

statement itself but allowed Nucera to allude to certain facts it

contained without attributing it to any specific individual.

4

had provided over 100 written responses to a questionnaire

from the parties that explored various subjects, including her

personal experiences with racism, her feelings about members

of law enforcement, and her ability to be impartial.

The responses revealed that Richardson had a “relative

or close friend” who had been “charged with [a] crime or been

the subject of [an] investigation[.]” App. 134. But she denied

that the matter would “affect [her] ability to be fair and

impartial” or “otherwise make it difficult for [her] to sit as a

juror in [the] case.” App. 134. Richardson also responded

“yes” to a question which asked if she believed someone who

uses “racially charged derogatory words” was “inclined to act

with physical aggression as well.” App. 141. But under

questioning by the Court and counsel, she explained that

people in a professional setting would stop to think “oh, my

pension, my kids, my house, am I willing to put that on the line

to become violent, and most [of those] people [would not].”

App. 155.

Lastly, she described incidents involving her sons being

stopped by police, but she denied holding a “grudge” against

the police for what happened. App. 152. She then explained the

complexities of how she had to interpret what her sons told her

based on their personalities, their ages, and her relationship

with them. And when the District Court asked if the incidents

would affect her view of the evidence, Richardson said they

would not. The District Court seated Richardson without

objection.

5

B. The Trial Evidence

The Government’s case against Nucera centered on his

alleged assault of Stroye, during an arrest. A grand jury

returned an indictment charging Nucera with three offenses:

one count of committing a hate crime, in violation of 18 U.S.C.

§ 249(a)(1), another count of depriving a person of civil rights,

in violation of 18 U.S.C. § 242, and a third count for later

making a false statement to the FBI about what happened, in

violation of 18 U.S.C. § 1001(a)(2).

Nucera’s trial began on September 20, 2019. Jurors

learned that he served as both the Chief of the Bordentown

Township Police Department (BTPD) and the Township’s

Business Administrator. On September 1, 2016, officers under

Nucera’s command responded to a local hotel manager’s

complaint that Timothy Stroye, a Black man, was staying in a

room he had not paid for and was using the swimming pool.

The jury heard evidence from Captain Shawn Mount that he

and Detective Sergeant Salvatore Guido arrived first,

confronting Stroye and his girlfriend on the first floor. Ignoring

commands to stop for questioning, both Stroye and his

girlfriend used a nearby stairwell to go up to the second floor.

A short time later in the second floor hallway, Mount and

Stroye soon found themselves locked in combat for several

minutes before Stroye finally went to the ground, just as

backup officers from BTPD and other nearby departments

came to help Mount make the arrest.

When the dust settled, officers patted Stroye down,

handcuffed him, and led him to the nearest stairway. Sergeant

6

Nathan Roohr testified that he stood behind Stroye when, a

short time later, Nucera approached from behind, “lunged his

hand forward,” grabbed Stroye’s head “like a basketball and

slammed it into the metal doorjamb” separating the hallway

from the stairwell. Supp. App. 266–67. Roohr said the impact

was so hard that it made a “loud thud.” Supp. App. 267.

Guido had a different vantage point. He testified that he

first took Stroye’s girlfriend into custody, then he led Stroye

out of the hallway. Guido put the handcuffed Stroye in “an

escort position” by “linking up” his left arm and Stroye’s right

arm so the two could enter the stairway together. Supp. App.

777–78. Guido remembered that Stroye was agitated and

spewing profanities but posed no physical threat to anyone.

Stroye “hesitated” at the entrance, so Guido “[ga]ve him a

little, little nudge to get through the door[.]” Supp. App. 779.

Guido testified that, at that moment, he felt a “force from

behind” and then saw “Chief Nucera’s arm in [his] peripheral

vision . . . pushing the back of Mr. Stroye through the door.”

Supp. App. 779.

Guido testified that the doorway had limited space, so

the force Nucera used was enough to cause him and Stroye to

strike opposite sides of the doorway with their bodies. And

even though Nucera appeared only in his peripheral vision,

Guido testified that he knew Chief Nucera was the instigator

because he and Nucera were the only officers on the scene in

plain clothes, and he recognized the distinctive peach color of

Nucera’s shirt. Guido presumed that Nucera pushed Stroye

“because . . . he wasn’t moving fast enough,” but he described

7

the act as “embarrassing” and noted that “it wasn’t needed at

all.” Supp. App. 779.

After the incident, Roohr returned to the police station

with Nucera and used his cell phone to record what Nucera had

to say. The recording captured Nucera using venomous and

racist language about the Black people the BTPD had

encountered:

I’m fucking tired of them man. I’ll

tell you what, it’s gonna get to the

point where I could shoot one of

these motherfuckers. And that

nigger bitch lady [referring to

Stroye’s girlfriend’s aunt], she

almost got it.

****

[After learning Stroye, his

girlfriend, and her aunt were from

Trenton] Stay the fuck out of

Bordentown. . . . It would have

been nice if that fucking [police]

dog could have come up. ‘Cause

they would have stopped, put

down.

****

That dog, that dog will stop

anything right then and there.

[Nucera makes barking noises.]

8

I’m telling you. You’d have seen

two fucking niggers stop dead in

their tracks. [Nucera laughs.] I

love that when they do that. I just

love that.

Supp. App. 1335, 1337. The jury also heard a recording in

which Nucera called someone a “[f]ucking little, fucking

nigger,” Supp. App. 1342, which Roohr testified was a

reference to Stroye, Roohr filed an official report that did not

refer to the alleged assault.2 But he later reported the incident

to the head of the BTPD’s Internal Affairs unit, Brian Pesce.

A few weeks later, Roohr took the same information to FBI

Agent Jacob Archer, whom he knew personally and

professionally for several years. Based on Roohr’s evidence,

the FBI launched an investigation and questioned Nucera in an

interview that agents recorded without his knowledge. During

the interview, which the Government played for the jury,

Nucera denied ever touching Stroye, let alone slamming his

head into the doorjamb.

Roohr also testified that Nucera had often used racial

epithets aimed at Black people. For example, nearly a year

before the incident, Nucera told him “[t]hese niggers are just

like ISIS, they have no value. They should line them all up and

mow them down. I would like to be on the firing squad.” Supp.

App. 280–81. And jurors heard another audio recording where

Nucera explained to Roohr, a K-9 handler, how to use his

2

But Roohr testified that fear of retaliation led him to withhold

the details of Nucera’s assault from his police report.

9

police dog to intimidate Black people—whom Nucera called

“fucking moulies.” Supp. App. 305–06, 1343–46.

Nucera offered his own evidence to challenge several

aspects of the Government’s case. For example, he presented

evidence that no other officers in close enough proximity heard

a loud thud. Of the nearly four dozen witnesses interviewed by

the FBI, only Roohr said he heard the sound. And none of the

other interviewed witnesses saw Nucera touch Stroye,

including the two other police officers at the scene. Nucera also

exposed inconsistencies between Roohr’s testimony and what

Roohr told the grand jury about how the touching occurred,

including his uncertainty about which hand Nucera used.

Likewise, Nucera offered evidence that Guido’s story had

changed several times, ultimately forcing him to all but admit

that he had no independent recollection of seeing Nucera push

Stroye.

Nucera even challenged the basic facts of the assault

and where he was when it happened. He drew testimony from

Roohr that he (Roohr) had told the grand jury Guido was the

one who gave Stroye a “hard push” after Stroye stopped in

front of the second-floor doorway. Supp. App. 386. He also got

Roohr to admit that Stroye was “passively resisting” Guido by

stopping as he did. Supp. App. 386–87. And he obtained

testimony from Mount that Nucera remained by his side for the

longest time of anyone at the scene, eventually insisting that

Mount go to the hospital.

10

Having challenged Roohr’s version of events, he also

highlighted Roohr’s credibility problems. Roohr deleted

several recordings aside from the one capturing Nucera’s racial

tirade after the incident. The evidence also suggested Roohr

had an axe to grind with Nucera over his leadership of the

department, including how he distributed opportunities to earn

overtime pay.And Roohr took his allegations to FBI Special

Agent Archer despite knowing the two men “mutually

disliked” one another after Archer had “unseated [Nucera] as a

fire commissioner in Bordentown Township[.]” Supp. App.

569.

Finally, Nucera challenged the FBI’s conduct. On cross-

examination, he got the FBI’s witness to admit that at least one

person told him the incident happened at a different location

than Roohr and Guido claimed, and it involved a person not

matching Nucera’s description. He also cast doubt on the way

the FBI treated him. Agents gave him no notice of the

interview, nor did they reveal it was being recorded. Still, he

voluntarily spoke with agents for about an hour and his

responses to their questions corroborated what Officers Nagle

and Mount said during FBI supervised recordings Roohr made

during the investigation. He also offered evidence that, unlike

Roohr, he made no efforts to destroy or conceal information

and even offered to have Pesce give the FBI any materials they

sought.

II. ALLEGED JUROR M ISCONDUCT

Nucera focuses much of his juror misconduct claim on

the deliberations, and he uses statements from jurors to support

11

it. Before reviewing what happened in the deliberations, and to

frame our analysis, we summarize key limits on a court’s

ability to consider the type of evidence Nucera offers when

seeking a new trial. In short, one rule of evidence and two

Supreme Court cases control the outcome. First, Federal Rule

of Evidence 606(b) limits the evidence from a juror that courts

may consider when used to challenge a verdict:

(1) Prohibited Testimony or Other

Evidence. During an inquiry into

the validity of a verdict or

indictment, a juror may not testify

about any statement made or

incident that occurred during the

jury’s deliberations; the effect of

anything on that juror’s or another

juror’s vote; or any juror’s mental

processes concerning the verdict

or indictment. The court may not

receive a juror’s affidavit or

evidence of a juror’s statement on

these matters.

(2) Exceptions. A juror may testify

about whether:

(A) extraneous prejudicial

information was improperly

brought to the jury’s attention;

(B) an outside influence was

improperly brought to bear on any

juror; or

12

(C) a mistake was made in entering

the verdict on the verdict form.

Fed. R. Evid. 606(b). And two recent Supreme Court cases

impose added constraints.3 First, the Court held that “Rule

606(b) precludes a party seeking a new trial from using one

juror’s affidavit of what another juror said in deliberations to

demonstrate the other juror’s dishonesty during voir dire.”

Warger v. Shauers, 574 U.S. 40, 42 (2014). But the Court

explained that the no-impeachment bar applies generally

“[d]uring an inquiry into the validity of a verdict.” Id. at 44.

Whatever its specific basis, a motion for a new trial based on

juror misconduct “plainly entails” such an inquiry because a

successful claim will overturn the verdict. Id. at 44–45. So Rule

606(b) bars the use of a juror’s affidavit to show that another

juror engaged in any misconduct, not just dishonesty during

voir dire. See id.

Later, in Peña-Rodriguez, the Court carved out a narrow

constitutional exception for evidence showing racial bias

during the deliberations. There, one juror said the defendant

was guilty of sexual misconduct “because [he was] Mexican

and Mexican men take whatever they want” and also because

the defendant’s alibi witness was “an illegal.” Peña-Rodriguez,

580 U.S. at 213. The Court held that “where a juror makes a

clear statement that indicates he or she relied on racial

3

Though several cases affect our analysis, we briefly discuss

the two Supreme Court cases here because they are the most

significant. We fully analyze the relevant legal framework

below.

13

stereotypes or animus to convict a criminal defendant, the

Sixth Amendment requires that the no-impeachment rule give

way in order to permit the trial court to consider the evidence

of the juror’s statement and any resulting denial of the jury trial

guarantee.” Id. at 225 (emphasis added).

With those rules in mind, we now examine what

occurred during the jury deliberations in Nucera’s trial.

A. Jury Deliberations

The District Court charged the jury and deliberations

began on October 2, 2019. Though twelve jurors decided

Nucera’s fate, only nine 4 are relevant here: Foreperson Kia

Lipscomb, Juror One (Black); Juror Two (White); Juror Three

(White); Juror Four (White); Juror Five (White); Juror Six

(White); Juror Nine (Black); Juror Eleven (White); and Pamela

Richardson, Juror 12 (Black). Over the first few days, the jury

asked to examine Roohr’s testimony and also sought to clarify

the definition of “reasonable doubt.” Supp. App. 1276–91. But

things soon hit a roadblock.

On the fifth day of deliberations, the jury notified the

District Court it was “unable to come to a unanimous

decision.” Supp. App. 1293. The District Court asked for the

4

Except for Lipscomb and Richardson, both of whom gave

public interviews, we omit the names of the jurors because of

privacy concerns and the affiant-jurors’ specific requests not to

have their names shared publicly.

14

parties’ guidance on how to move forward, and at the

Government’s urging, the Court convened the jury and issued

a reminder to “make every reasonable effort . . . to reach

unanimous agreement.” Supp. App. 1295. But the District

Court stressed the jury should “reach unanimous

agreement . . . only if [they could] do so honestly and in good

conscience.” Supp. App. 1295–96. Finally, the District Court

asked jurors to “make another effort” at reaching an agreement

and sent them back to deliberate. Supp. App. 1296.

Late the next afternoon, the jury sent another note to the

District Court: “[i]f we are unanimous on one count, but

deadlocked on the other two, what is our next step[?]” Supp.

App. 1299. Nucera’s counsel suggested—and the Government

agreed—to have the District Court give Third Circuit Model

Jury Instruction 9.08 governing partial jury verdicts. The

District Court called in the jury, read back their question, and

then gave the requested instruction: the jury “[did] not have to

reach unanimous agreement on all the charges before returning

a verdict on some of them,” and they could either deliver their

partial verdict, then resume deliberating on the rest, or they

could “wait until the end of [their] deliberations and return all

[their] verdicts then.” Supp. App. 1300–01. With those

instructions in mind, the jurors returned to deliberate before

later asking the District Court to release them for the day.

On day seven, the jury sent a third note to the District

Court that read simply “[w]e have come to a unanimous

decision on Count [Three].” Supp. App. 1305. The District

Court then brought the jury in, and the jury returned a

15

unanimous verdict as to Count Three.The District Court then

polled the jury to “ask each of [them] in turn if [they] agree[d]

or disagree[d] with the verdicts as announced by Miss

Lipscomb” and “found [the jury members] to be

unanimous.”Supp. App. 1309. With that done, the District

Court ordered the verdict filed and gave the jury members a

choice to declare themselves deadlocked on Counts One and

Two or keep deliberating.The jury members chose to keep

deliberating.

Two days later, deliberations broke down for good. In a

final note to the District Court, the jurors said they were

deadlocked on Count One and Count Two of the indictment,

charging Nucera with a civil rights violation and a hate crime,

respectively. The District Court asked the jurors “whether

[they] believe[d] there [was] any reasonable possibility that

further deliberations would yield a unanimous verdict on either

of [those] counts[.]” Supp. App. 1319. The answer was no. So

the District Court granted Nucera’s request for a mistrial due

to the impasse and discharged the jury.

Soon after the trial, Jurors Two, Three, Four, and Eleven

approached Nucera’s counsel with allegations of juror

misconduct. Each swore an affidavit recounting specific

instances of alleged misconduct they witnessed both before

and during deliberations. In one of the allegations, Juror Two

recalled that, before deliberations, Juror Richardson said that

she had served on a jury before and told those jurors, “[h]ope

you are all thinking guilty, I can be here all day, I have

f***king nowhere [sic] to be,” App. 189, apparently signaling

16

that she had reached the same conclusion in Nucera’s trial. In

another incident after deliberations started, jurors debated

about the meaning of the words “unreasonable” and

“unnecessary” as it related to the first two counts of the

indictment. App. 177–78, 186, 200, 210. All four affidavits

agree that Juror Six tried to end that debate: after consulting

“three different sources,” Juror Six offered his fellow jurors

definitions of the words that he had looked up the night before.

App.210.

Still, the bigger problem was the volatile mix of the

evidence with issues of race and racism. The affidavits

depicted a worsening divide between those favoring conviction

and those favoring acquittal. On one side sat nine jurors who

would vote to acquit Nucera, and on the other were three

jurors—all Black women—who thought Nucera was guilty on

each count. Based on that division, Juror Eleven told the others

he “wanted to point out ‘the elephant in the room’” that the

three Black jurors “were perhaps looking at things through a

‘different lens[.]’” App. 202. Juror Eleven recalled that

Richardson responded by saying “no shit, Sherlock, we’re

Black,” and that she questioned why she was chosen for the

jury after she admitted at voir dire that she had a “problem with

cops.” App. 202.

Juror Three described an atmosphere rife with

“bullying, racial tensions, and unfounded accusations,” all of

which she said affected the deliberations. App. 166–67. Juror

Four was more specific, noting that each time she “tried to

express [her] thoughts on the evidence,” she found herself

17

“shut down” by Juror Richardson and Juror Nine despite

pointing to “clear evidence” that supported her position. App.

180–81. Based on those dynamics, the four affiants—all of

whom are White—said they shared a belief that Nucera was

innocent of any crime, but each said they yielded to pressure

from other jurors to convict him of something so they would

not be painted as a racist.

In addition, each affidavit identified Richardson’s

various statements as the main source of the jury room’s strife.

During the deliberations, Richardson described how her older

son—who worked as a pharmacist—endured three traffic stops

late the same night and in adjoining New Jersey towns, saying

each was for “driving while Black.” App. 171, 182, 190, 205.

She also told jurors about a time her younger son was working

in his own yard at night when police approached and put him

in custody because “he could not produce a key.” App. 183.

Though he was “later released with an apology,” Richardson

said the incident happened only because “her son ‘was black,

a black man doing yard work,’” App. 191, adding that police

officers in the town followed her son for weeks after the

incident. Richardson explained that those kinds of experiences

were the reason that mothers of Black boys must teach them

how to interact with police and submit to their commands.

AndJuror Three remembered Richardson saying that because

of those experiences, “she would be hard-pressed to return to

her sons and her community without a conviction or jail time

for Frank Nucera.” App. 172.

18

After the partial guilty verdict, Richardson fought

through tears as she recounted her experiences “growing up

Black in the South.” App. 197. In one example, she told fellow

jurors she had to “urinate on the side of the road in a

mayonnaise jar when traveling with her parents because she

was not allowed to use the ‘whites only’ restroom[s]” they

passed along the way. App. 197. And in another, she described

“having been made to leave places as a child because of her

skin color.” App. 197.

Those stories brought Jurors Five and Six to tears. Juror

Six hugged Richardson and told her, “I’m sorry, I’m so sorry,

I remember those days.” App. 175. Juror Eleven also

remembered Juror Six telling him that “he felt the need to make

‘reparations’” both for the “overall treatment of African

Americans” and because of his own “past bad behavior[.]”

App. 207. And a tearful Juror Six added that he had “been

around a long time” and if the jury did not convict Nucera,

“these things will continue to happen[.]” App. 177.

Yet if Richardson’s stories of living in the South under

Jim Crow unleashed tears, her other statements sparked a

firestorm. While the jury was deadlocked on the first two

counts, Richardson declared, “Every time I hear someone in

this room say ‘I’m not prejudiced, I have a black friend,’ if I

had a gun, I would shoot each one of you.” App. 176. Stunned

silence blanketed the room, broken only when Juror Eleven

asked, “who can speak after statements like that[?]” App. 204.

Juror Eleven said Richardson responded that she was “sure [he

had] gone about [his] day before when other racist things

19

happened and it was no big deal to [him].” App. 204. Likewise,

Juror Three recalled sharing her views about why Nucera was

not guilty, only to have Richardson purportedly accuse her of

“just want[ing] 12 white jurors.” App. 192.

Finally, the affidavits also pointed to other alleged

threats and intimidation in the jury room. When the jury first

deadlocked, Juror Five slammed the table and yelled

“mother***er, I’ll be damned if we let this guy walk. I’ll sit

another three weeks until we can convict this guy.” App. 191.

Days later, and before the jury reached its unanimous guilty

verdict on Count Three, Juror Two approached the Deputy

Clerk to report “disrespect and racial comments that were

being made in the jury room during deliberations.” App. 194.

She told the Clerk, “in essence[,] that some of [the] jurors were

being called racists by other jurors.” App. 194. The Clerk

instructed that “if [she] had any further issues, [she] should

write a note to the [j]udge.” App. 194. Juror Two never did:

she noted there was paper available but no envelopes, and

without a way to seal her note, she was concerned that

Lipscomb would read it before it left the room. 5

During a break the next day, Juror Four said she

overheard Juror Five tell a court security officer he “felt like

ripping the sink off the wall in the bathroom.” App. 184. Juror

Two said things were so tense that she asked a court security

5

The record does not otherwise reveal that the Clerk made the

District Court aware of Juror Two’s concerns, or that the

District Court shared them with the parties.

20

officer to tell the Deputy Clerk that the matters she raised

before “had gotten worse.” App. 198. The court security officer

returned with a message from the Deputy Clerk that the District

Court had given jurors an added 30-minute break during which

they could leave the courthouse with their cell phones. Later,

the judge met with jurors in the jury assembly room to discuss

what was happening in deliberations, and Juror Two recalled

crying as she told the judge “there was serious disrespect going

on in the jury room,” yet she was uncertain if she mentioned

any threats. App. 198–99. After hearing the jurors’ concerns,

the District Court stressed that “personal feelings [had] to be

left out of the deliberation room” and instructed the jurors “to

go back into the deliberation room and to decide” if they

wished to continue. App. 199.

But the affiants were not the only jurors to discuss the

deliberations. The day trial ended, Richardson and Lipscomb

sat for an interview with the Philadelphia Inquirer to describe

what happened. Richardson said she feared a possible deadlock

as early as “the second day of deliberation[.]” App. 162. She

also said the Government’s recordings “helped to convince her

that Nucera was guilty of” the assault on Stroye. App. 162. And

she explained why:

When somebody used the racist

commentary that he has used his

whole life, and it’s on tape, the

racist things he said, you just

automatically have to assume that

he would do something to

somebody[.] I mean, it’s on tape

21

where he said he wished the two

people were still outside so that he

could sic the dogs on the n----s

because that would’ve put them

down.

App. 162. Lipscomb added that the jurors “all kind of

agreed that the extensive racial piece of it was absolutely there,

and that it was an atrocity.” App. 163.

Richardson noted that deliberations soon became all

about the race of the jurors. She recalled when Juror Eleven

challenged the perspective of the Black jurors, but she said it

happened differently than the way he described it. Rather than

observe they were viewing things through a “different lens,”

Richardson said that Juror Eleven was more direct: “The only

reason you African American women are voting this way is

because you’re black.” App. 163. Richardson confirmed her

acerbic reply of “[n]o s—t, Sherlock.” App. 163. But she added

that, “[t]he next morning, [a] white juror [with] black family

members confronted” Juror Eleven about the comment he

made. App. 163.

The jurors also split over whether to believe key pieces

of evidence implicating Nucera. Lipscomb explained that “the

jury struggled with the testimony of Sgt. Nathan Roohr and

Detective Sgt. Salvatore Guido, the township police officers

who implicated Nucera” with their eyewitness testimony. App.

164. According to Lipscomb, the three holdouts “really felt that

they couldn’t trust their testimony.” App. 164. Plus, the jury

found it difficult “to agree on whether Stroye was struck in the

22

head” as the Government had alleged, and that was a hard

question to resolve because neither side called Stroye to testify

even though he had been subpoenaed. App. 164.

Richardson also described how the consensus shifted to

favor guilt. By the final day, after the guilty verdict had been

rendered on Count Three and the jurors were focused on

Counts One and Two, the nine votes favoring acquittal on the

first two counts of the indictment became nine votes favoring

conviction, and those jurors started the session with an effort

“to persuade the other three to see their side.” App. 164. During

that attempt, Richardson remembered that three or four of the

men who believed Nucera was guilty broke down into tears.

But the holdouts refused to accept Roohr’s and Guido’s version

of events, and so the jury agreed to tell the District Court they

could not continue. Adding a final exclamation to the

holdouts’ resistance, “[o]ne white male juror, who was in favor

of acquittal, stood in the jury box defiantly with his arms

crossed” as the District Court closed the proceedings. App.

164.

B. Nucera’s New Trial Motion

Nucera moved for a new trial and requested an

evidentiary hearing. Nucera urged that Richardson gave

materially false answers during voir dire to conceal her biases,

and he also claimed that Richardson and others engaged in

misconduct that tainted the jury’s verdict on Count Three of

the indictment. And he connected those allegations with the

assertion that Richardson’s various statements during and after

deliberations supplied the evidence that she lied during voir

23

dire. As evidence of the alleged misconduct, Nucera offered

the four juror affidavits, Richardson and Lipscomb’s interview

in the Inquirer, and a Facebook post Richardson wrote on

September 17, 2014.6

The District Court noted that Nucera’s evidence faced

an immediate problem: Rule 606 prohibits “receiving an

affidavit or evidence of a juror’s statement, except in three

circumstances” set forth in the Rule or the constitutional

exception for racial bias under Peña-Rodriguez. Supp. App.

1348. Nucera responded that the alleged misconduct triggered

the exceptions of Rule 606(b)(2)(A), allowing evidence of

extraneous prejudicial information, and Rule 606(b)(2)(B),

6

Richardson’s Facebook post addressed the perceived lack of

accountability law enforcement officers face for domestic

violence:

Now that professional athletes are

losing money and jobs due to their

poor behavior against children and

women, when are correctional

officers and policemen going to be

sanctioned? Does this mean that

one day we are going to ask for all

men to stop the violence against

women and children? But can we

one day get to the point there is no

violence at all? Oh, I must be

dreaming . . . but it’s a great dream.

App. 159.

24

allowing evidence of an improper outside influence. He also

urged the District Court to hold that the racial bias exception

of Peña-Rodriguez applied because the evidence showed that

pervasive, general racial animus in the deliberations tainted the

verdict and denied him a fair trial.

The District Court denied Nucera’s request for a new

trial, concluding that the evidence of alleged misconduct fit

none of the exceptions in Rule 606(b)(2), and none of the

materials showed the “clear, strong evidence of juror

misconduct” that our precedent requires for a hearing. Supp.

App. 1397. The District Court explained that the rules against

impeaching jury verdicts are “very strong and very narrowly

construed,” Supp. App. 1399, compelling certain findings from

the Court about the evidence Nucera used to support his claim.

The District Court began with the allegations that Juror

Six presented definitions of two words to other jurors at the end

of deliberations. Though the Court agreed their use was

improper, it concluded that Nucera presented no evidence that

the use prejudiced him because the affidavits did not show the

incident happened before the guilty verdict on Count Three.

Instead, the evidence supported a finding that Juror Six used

the definitions after the guilty verdict because the words “had

no relationship whatsoever to the law that governed the

decision in Count [Three],” Supp. App. 1399, while they did

relate to Count Two, “for which there was no verdict.” Supp.

App. 1352.

25

Next, the District Court turned to the allegation that

Richardson’s stories injected racial bias into the deliberations.

Based on the record Nucera developed, the narrow racial bias

exception of Peña-Rodriguez did not apply because the District

Court read Peña-Rodriguez to hold that “only when the

evidence shows that the racism and the race of the defendant

was what caused the conviction that the Court can inquire to

ensure that the conviction was not based on racism.” Supp.

App. 1400. But the District Court found that “none of the

affidavits [said] that any of the jurors . . . who voted

guilty . . . did so because of [Nucera’s] race. ” Supp. App.

1356. More, the District Court observed that every court to

decide the issue had “rejected extension of Peña-Rodriguez” to

the scenario Nucera alleged. Supp. App. 1401; accord Supp.

App. 1362 (discussing United States v. Robinson, 872 F.3d 760

(6th Cir. 2017) and Williams v. Price, No. 2:98cv1320, 2017

WL 6729978 (W.D. Pa. Dec. 29, 2017)).

But the District Court reasoned that even if Nucera’s

position found support in the caselaw, the nature of his case

undermined the argument that Richardson was wrong to inject

race into the deliberations:

THE COURT: [T]his is such an

unusual case. This is not just a

regular case where the race of a

plaintiff or a defendant or, you

know, the victim and aggressor are

different. This is a case where race

is an element of the crime. It is

alleged to be the motive behind the

26

alleged crimes. You’ve got to have

discussions of race and racism.

Just by definition, the jury’s going

to have to have those discussions

in order to reach a verdict.

Supp. App. 1364. The District Court concluded that all

Richardson had done was bring her life experiences to bear on

how she viewed the evidence, which is precisely what courts

expect jurors to do.

The District Court also disposed of the allegations that

threats and intimidation undermined the fairness of

deliberations. To start, Juror Two’s affidavit was the first

evidence the District Court received of comments about

shooting other jurors or ripping the sink off the wall, and the

Court zeroed in on Juror Two’s concession that she was not

sure she raised the issue when jurors met with the District

Court to discuss their concerns. Yet even if she had, the

timeline in Juror Two’s affidavit showed the alleged threats7

occurred after the jury found Nucera guilty on the false

7

The District Court also questioned whether Richardson’s

statement was even a true threat, noting Richardson did not

say, “if you don’t vote to convict, I’ll shoot you in the head”

but rather used the phrase “out of frustration” about White

jurors saying they could not be racist because they have a Black

friend or relative. Supp. App. 1366. At any rate, the District

Court made it clear that had “there [been] any indication of any

threats,” the Court “would have done something about that at

the time[.]” Supp. App. 1366.

27

statements charge in Count Three and thus could not have

affected that part of the verdict.

Finally, the District Court turned to Nucera’s argument

that Richardson lied during voir dire. After acknowledging that

Warger barred Nucera’s evidence to support that claim, the

District Court still addressed the merits of the argument and

concluded that Nucera’s evidence did not show Richardson

lied during voir dire. The Court first noted the relevant facts

that Richardson provided: she revealed her children’s

interactions with police; she said she could separate bad words

from deeds; and though she said professionals who use

derogatory language were less likely to also commit bad acts,

she never said that was always true. The District Court

explained that Richardson was seated based on the conclusion

she was truthful in those answers—a conclusion Nucera never

challenged, let alone displaced, during the voir dire process.

The District Court also found that Richardson’s

Inquirer interview and Facebook post did not show her voir

dire answers were false. Contrary to Nucera’s argument, the

Inquirer interview did not show Richardson lied during voir

dire about whether people act in accordance with hateful

language; it showed that she concluded Nucera had the

propensity to do so after hearing the full extent of his racist

language—particularly the recorded threats to sic dogs on

Black people—which had a different effect on her than the

District Court’s brief references to racial slurs during voir dire.

Likewise, the District Court found Richardson’s Facebook post

was “innocuous” and did not show she lied about antipolice

28

bias during voir dire. Supp. App. 1401.Instead, the District

Court noted, the post showed Richardson’s “frustration with

violence against women” and her perception that police

officers who perpetrate such violence often escape

accountability. Supp. App. 1401.

For all those reasons, the District Court denied Nucera’s

motion for a new trial without an evidentiary hearing. The

District Court later sentenced Nucera to 28 months on Count

Three using a cross reference and an upward variance under

the Sentencing Guidelines, which Nucera also challenged and

later raised on appeal. Almost two years later, the Government

tried Nucera again on the two charges that hung the jury in the

first trial. But the second jury deadlocked too, and at the

Government’s request, the District Court declared another

mistrial.

Nucera timely appealed.

III. JURISDICTION

The District Court had subject-matter jurisdiction under

18 U.S.C. § 3231, and our jurisdiction is proper under 28

U.S.C. § 1291 and 18 U.S.C. § 3742.

IV. RELEVANT LEGAL STANDARDS

A. Claims of Juror Misconduct

When a defendant moves for a new trial based on jury

misconduct, we review the denial of that motion for an abuse

29

of discretion. See United States v. Noel, 905 F.3d 258, 266–67

(3d Cir. 2018). The “district court’s discretion over a new trial

motion [includes determining] whether an evidentiary hearing

is necessary.” Id. at 270 n.7 (collecting cases). To get a new

trial, a defendant must (1) “file the motion within fourteen days

of the verdict unless the motion is grounded on ‘newly

discovered evidence’” and (2) “show that a new trial is in the

interest of justice.” Id. at 270 (quoting Fed. R. Crim. P. 33). A

movant receives an evidentiary hearing only where the

allegations “rise to the level of clear, strong, substantial and

incontrovertible evidence that a specific, nonspeculative

impropriety has occurred.” United States v. Claxton, 766 F.3d

280, 301 (3d Cir. 2014) (cleaned up).

B. Allegations of Juror Dishonesty During Voir

Dire

In denying Nucera’s motion, the District Court

considered the merits of his allegations that Richardson lied

during voir dire. But as we explained above, the Supreme

Court’s opinion in Warger forecloses us from doing the same:

“Rule 606(b) precludes a party seeking a new trial from using

one juror’s affidavit of what another juror said in deliberations

to demonstrate the other juror’s dishonesty during voir dire.”

574 U.S. at 42. Warger thus bars Nucera’s use of the juror

affidavits to prove this part of his claim. 8

8

As we note infra, in Warger, the Court included a footnote

alluding to possible cases of juror bias “so extreme” as to

30

The same holds true for his other evidence. Based on

Warger and our own decision in United States v. Lakhani, 480

F.3d 171 (3d Cir. 2017), we conclude Rule 606(b) still bars the

use of a juror’s statement when it appears in something other

than an affidavit and even when the juror makes the statement

publicly. In Lakhani, a defendant convicted for trying to import

missiles sought a new trial after a juror came forward to say

that other jurors engaged in misconduct during deliberations.

480 F.3d at 184. That juror appeared on a public radio show to

say she thought the Government had entrapped the defendant

and she voted guilty only after yielding to intimidation from

fellow jurors. Id. Even though the juror told her tale on the

radio, rather than in an affidavit or other writing, we still held

it was so obvious that Rule 606(b) barred the use of her

statement that we found it difficult to explain “beyond stating

the rule itself[.]” Id. at 185. Richardson’s and Lipscomb’s

statements to the Inquirer are much the same as the juror’s

public statement in Lakhani, and thus Rule 606(b) likewise

bars their use to show Richardson’s dishonesty.

Lastly, although Rule 606(b) presents no obstacle to

considering Richardson’s Facebook post, we agree with the

District Court that it does not show Richardson gave dishonest

voir dire answers or harbored antipolice bias. Like the District

Court, we conclude the post shows Richardson’s specific

warrant an exception, but we find nothing in Richardson’s voir

dire responses that constituted misconduct, let alone an

extreme case. Instead, we find the District Court’s analysis of

this issue to be reasonable.

31

frustration with a perceived lack of accountability for members

of law enforcement that commit domestic violence. That is a

long way from general antipolice bias. It also does not show

that her voir dire answers were false. Nothing that she said in

the Facebook post contradicts or was inconsistent with her

responses to questions in voir dire. We agree with the District

Court that the post was “innocuous.” Supp. App. 1401. Beyond

that, we note Richardson wrote the post five years before

Nucera’s trial, and nothing in the record suggests she tried to

conceal its existence at any point.

In sum, none of Nucera’s evidence supporting the claim

of juror dishonesty escapes Rule 606(b) and Warger. Because

he offers no other meaningful evidence to support those

allegations, we conclude that the District Court did not abuse

its discretion, and so Nucera’s challenge to the verdict on that

basis falls short.

C. Rules and Jurisprudence Governing Juror

Misconduct Evidence

Juror misconduct claims implicate the Sixth

Amendment’s guarantee that criminal defendants will get a fair

trial by an impartial jury. Yet they also threaten the important

principle that juries get the last word when they render a

verdict. To square things, Federal Rule of Evidence 606(b)

limits the evidence that defendants can use to prove they did

not get a fair trial. Once the jury enters its verdict, a defendant

may not use “a juror’s affidavit or evidence of a juror’s

statement” to question the verdict unless the exceptions in the

Rule, which we outlined above, apply. Fed. R. Evid. 606(b).

32

So, in general, a defendant cannot question the validity

of the verdict using a juror’s affidavit or any evidence of a

juror’s statement to probe (1) statements jurors made or

incidents that happened during deliberations; (2) anything that

affected any juror’s vote; or (3) a juror’s mental processes

about the verdict. But a defendant may do so if the evidence

shows one of three things happened: (1) a juror learned of

prejudicial information from outside the deliberations; (2) a

juror succumbed to an improper outside influence; or (3) a

mistake occurred when entering the verdict or completing the

verdict form.

As the Supreme Court has explained, the roots of Rule

606(b) run deep in the soil of English common law. See Peña-

Rodriguez, 580 U.S at 215(discussing Vaise v. Delaval, 1 T.R.

11, 99 Eng. Rep. 944 (K.B. 1785)). Since the Rule’s inception,

the Supreme Court has made three major pronouncements

about when and how it applies. First, in Tanner v. United

States, 483 U.S. 107, 121–22 (1987), the Court held that Rule

606(b) barred a juror’s post-verdict statement to show that

jurors engaged in misconduct during trial and in deliberations.

The Court’s decision rested on two principles. To start, the

Court observed that, were it to recognize a constitutional

exception to Rule 606(b), such a holding would have flooded

the system with challenges to verdicts, which, in turn, would

encourage juror harassment and destroy the “frankness and

freedom of discussion and conference” inherent in “what was

intended to be a private deliberation.” Id. at 120 (quoting

McDonald v. Pless, 238 U.S. 264, 267–68 (1915)). And the

Court reasoned that the jury system already had adequate

33

safeguards to protect a defendant’s Sixth Amendment rights—

the voir dire process, surveillance by court staff, and the ability

of jurors to come forward before the jury reached a verdict. Id.

at 126–27.

Later, in Warger, the Court extended Tanner to hold

that “Rule 606(b) precludes a party seeking a new trial from

using one juror’s affidavit of what another juror said in

deliberations to demonstrate the other juror’s dishonesty

during voir dire.” Warger, 574 U.S. at 42. There, the Court

affirmed the denial of a new trial for an injured plaintiff based

on juror affidavits alleging the jury’s foreperson concealed her

bias in favor of the defendant. Id. at 42–44. The Court rejected

the argument that because the juror should never have been

seated, “any information she shared with other jurors was

extraneous,” and thus the affidavit revealing her dishonesty

was “admissible under Rule 606(b)(2)(A)’s exception for

evidence as to whether ‘extraneous prejudicial information was

improperly brought to the jury’s attention,’”9 id. at 51, and the

9

The Court observed that a central feature of the extraneous

evidence inquiry is whether a matter is “internal” or “external”

to a jury, and it found the challenged juror misconduct was

“internal” and off-limits under Rule 606(b). Id. at 53. The

Court explained the difference between “internal” and

“external” matters:

Generally speaking, information is

deemed “extraneous” if it derives

from a source “external” to the

jury. “External” matters include

34

Court again declined to create a constitutional exception. Id. at

50–51. Yet in a footnote, the Court acknowledged possible

“cases of juror bias so extreme that” they “abridged” the right

to a jury trial, noting the emergence of such a case would force

the Court to reexamine “whether the [Tanner] safeguards are

or are not sufficient to protect the integrity of the process.” Id.

at 51 n.3.

The “extreme” case arose three years later. In Peña-

Rodriguez v. Colorado, a state court jury convicted a Mexican

man for sexual misconduct with two minor girls. 580 U.S. at

212. Two jurors approached defense counsel and swore

affidavits alleging that another biased juror said the defendant

was guilty for two inappropriate reasons: first, he told his

fellow jurors that he believed the defendant “did it because he’s

Mexican and Mexican men take whatever they want,” and

second, he also told the other jurors that he believed the

defendant’s alibi witness was not credible based on his

incorrect belief that the witness was “an illegal.” Id. at 213. Yet

even in the face of the juror’s “apparent bias,” the trial court

and the Colorado Supreme Court both concluded there was no

publicity and information related

specifically to the case the jurors

are meant to decide, while

“internal” matters include the

general body of experiences that

jurors are understood to bring with

them to the jury room.

Warger, 574 U.S. at 51.

35

basis to overcome the bar against impeaching verdicts in

Colorado’s version of Rule 606(b).10 Id. at 213–14.

Reversing the Colorado courts, the Supreme Court held

the juror’s racial bias was the rare kind that let a court examine

the verdict. Id. at 225.In the Court’s two previous opinions

construing Rule 606(b), the Tanner safeguards seemed

appropriate to deal with the general categories of alleged

misconduct involved. But the Court concluded racial bias was

different. As Justice Kennedy wrote for the majority, racial

bias is “a familiar and recurring evil that, if left unaddressed,

would risk systemic injury to the administration of justice,”

and it had shown an unparalleled ability to evade the Tanner

safeguards. Id. at 224–25. Thus, to obey the Fourteenth

Amendment’s “imperative to purge racial prejudice from the

administration of justice,” the Court declared that “[i]t must

become the heritage of our Nation to rise above racial

classifications that are so inconsistent with our commitment to

the equal dignity of all persons.” Id. at 221. Given the uniquely

insidious threat racial bias posed to the fairness of the jury

system, the Court reasoned that the time had come for a

10

As the Court explained, Colorado’s version of the no-

impeachment rule is functionally identical to Federal Rule of

Evidence 606(b), which “[l]ike its federal

counterpart . . . generally prohibits a juror from testifying as to

any statement made during deliberations in a proceeding

inquiring into the validity of the verdict.” Peña-Rodriguez, 580

U.S. at 213.

36

constitutional exception to Rule 606(b). Peña-Rodriguez, 580

U.S. at 225.

The Court held that “where a juror makes a clear

statement that indicates he or she relied on racial stereotypes

or animus to convict a criminal defendant, the Sixth

Amendment requires that the no-impeachment rule give way

in order to permit the trial court to consider the evidence of the

juror’s statement and any resulting denial of the jury trial

guarantee.” Id. (emphasis added). But it cautioned that “[n]ot

every offhand comment indicating racial bias or hostility”

justified an inquiry. Id. For the exception to apply, the

challenged statements must show “overt racial bias that casts

serious doubt on the fairness and impartiality of the jury’s

deliberations and resulting verdict” and must also show that

“racial animus was a significant motivating factor in the juror’s

vote to convict.” Id. at 225–26. The statements in Peña-

Rodriguez easily met that standard. To start, the statements

themselves showed an “egregious and unmistakable . . .

reliance on racial bias” as the juror’s reason to convict the

defendant. Id. at 226. And the biased juror did not stop there:

“[n]ot only did [he] deploy a dangerous racial stereotype to

conclude petitioner was guilty and his alibi witness should not

be believed, but he also encouraged other jurors to join him in

convicting on that basis.” Id.

The historical sweep of the Court’s decision may be

wide but the exception it announced is narrow, and the

dissenting opinions convince us the exception is likely to

remain that way. In a dissent joined by the Chief Justice and

37

Justice Thomas, Justice Alito urged that the fundamental

reasons underlying the Court’s reluctance to create a

constitutional exception remained valid. He reasoned that our

legal system operates on the background principle that losing

certain “important evidence” is justified because

“confidentiality is thought to be essential.” Peña-Rodriguez,

580 U.S. at 235–36 (Alito, J., dissenting). Nowhere was that

truer than the jury system and its reliance on secrecy and

discretion to ensure “full and frank discussion in the jury

room.” Id. at 242 (cleaned up). That was why, “[f]or centuries,

it has been the judgment of experienced judges, trial attorneys,

scholars, and lawmakers that allowing jurors to testify after a

trial about what took place in the jury room would undermine

the system of trial by jury that is integral to our legal system.”

Id. at 236. Believing the Court had ignored that judgment,

Justice Alito warned that opening the door to the jury room

would subject jurors to harassment, lower public confidence in

juries, and give jurors an incentive to change their minds after

being “pressed for unanimity” during deliberations or facing a

hostile reaction to the verdict from people close to them. Id. at

249.

The Court’s insistence on a narrow exception has

counseled our sister courts to decline invitations to stretch the

exception beyond its narrow boundaries. See, e.g., United

States v. Brooks, 987 F.3d 593, 603 (6th Cir. 2021); United

States v. Norwood, 982 F.3d 1032, 1057 (7th Cir. 2020);

United States v. Robinson, 872 F.3d 760, 771 (6th Cir. 2017)

(finding that the exception did not apply to evidence of White

38

foreperson’s accusation that Black jurors’ view of the evidence

showed they were beholden to Black defendants).

V. DISCUSSION

Nucera raises several issues on appeal. First, he argues

the District Court erred when it refused to hold an evidentiary

hearing and denied his motion for a new trial based on his

allegations of juror misconduct. 11 In addition, he says the

District Court erred when it refused to let him identify Stroye

as having made an out-of-court statement that purportedly

showed someone else attacked him and did so in a different

location. He also urges that the District Court confused the jury

with its instruction about the unanimity required to convict him

on Count Three for making false statements to the FBI. And

finally, he urges that the District Court misread the Sentencing

Guidelines when it used the cross reference provision in the

guideline for false statements offenses to sentence him under

the more punitive guideline for civil rights offenses and varied

upward from the guideline. We only agree with Nucera’s

contention about the cross reference provision, so we will

affirm the District Court in all other respects.

11

We need not consider at any length the allegations of juror

dishonesty during voir dire, because Warger instructs that

“Rule 606(b) precludes a party seeking a new trial from using

one juror's affidavit of what another juror said in deliberations

to demonstrate the other juror’s dishonesty during voir dire.”

574 U.S. at 42.

39

A. The District Court Did Not Err in Denying

Nucera’s Motion

Nucera claims the District Court should have granted a

new trial or an evidentiary hearing based on alleged juror

misconduct before and during deliberations. But his attempt to

impeach the verdict runs headlong into Rule 606(b) and

Supreme Court precedent.

As the Supreme Court explained in Warger, the no-

impeachment bar applies generally “[d]uring an inquiry into

the validity of a verdict,” and a motion for a new trial based on

juror misconduct “plainly entails” that inquiry. 574 U.S. at 44–

45. Nucera mostly offers post-verdict juror statements to

support his claim, and that evidence falls within Rule 606(b)’s

general prohibition.12 That being so, Nucera could only use the

statements if they satisfied either the exceptions in Rule 606(b)

or the Supreme Court’s narrow constitutional exception for

evidence of racial bias in Peña-Rodriguez. But the District

Court correctly concluded the statements satisfied none. Only

the allegation that Juror Six brought dictionary definitions into

the jury room comes close to satisfying the exception for

extraneous prejudicial information, but not close enough. We

agree that Juror Six’s conduct was improper, but we likewise

agree it did not prejudice Nucera. The evidence shows the

definitions related to the first two counts, Juror Six only

showed them to the jury after Nucera’s conviction on Count

12

Richardson’s Facebook post is the one piece of evidence that

is not a post-verdict juror statement, and it therefore does not

fall into the prohibition.

40

Three, and the jury did not convict Nucera on any count for

which the definitions were used. So Nucera suffered no harm

as a result.

Nor does the evidence show an improper outside

influence affected the deliberations. Nucera points to several

instances of alleged misconduct. He directs us to Richardson’s

stories of racial discrimination and purported threats to shoot

other jurors, as well as instances of intimidation and

accusations of racist behavior by some jurors. He also alleges

that jurors intimidated one another and accused each other of

being racist. The jurisprudence is clear that Rule 606(b) bars

inquiry into “internal” jury matters and those “include the

general body of experiences that jurors are understood to bring

with them to the jury room.” Id. at 51. Internal matters also

include the less desirable things that jurors either bring with

them to the jury room or that happen once inside. See Tanner,

483 U.S. at 121–22 (rejecting a claim based on drug and

alcohol use); Peña-Rodriguez, 580 U.S. at 225 (explaining that

not “every offhand comment indicating racial bias or hostility”

triggers an exception to the no-impeachment bar). Rule 606(b)

thus does not allow juror evidence of one juror’s accusations

of racism against another. Or even juror intimidation.13 So the

13

As we have explained, “[t]hough we hope that jury

deliberations proceed in a manner respectful of every juror’s

opinion, rather than what allegedly occurred here, ‘[t]estimony

concerning intimidation or harassment of one juror by another

falls squarely within the core prohibition of the Rule.’”

41

District Court could not consider any of Nucera’s evidence of

juror misconduct under the Rule’s exception to show an

improper outside influence.

Finally, Nucera’s evidence does not satisfy the Peña-

Rodriguez exception for racial bias. That narrow exception

applies only “where a juror makes a clear statement that

indicates he or she relied on racial stereotypes or animus to

convict a criminal defendant[.]” Peña-Rodriguez, 580 U.S. at

225 (emphasis added). Whether a juror has “made statements

exhibiting overt racial bias that cast serious doubt on the

fairness and impartiality of the jury’s deliberations and

resulting verdict” is “a matter committed to the substantial

discretion of the trial court,” Peña-Rodriguez, 580 U.S. at 225–

26, and we agree with the District Court that Nucera’s evidence

fails to meet that strict test. True, the affidavits and the Inquirer

interview show jurors made pointed statements about race. But

we agree that none of Nucera’s evidence shows that a juror

voted to convict because of Nucera’s race. Nor do the juror

affidavits show that “Juror Richardson’s racial animus was a

‘significant motivating factor’ in her vote to convict.” Reply

Br. 1. Richardson said nothing about Nucera being White, let

alone that she would vote to convict him because he was

White. Instead, the evidence shows she believed Roohr and

Guido were telling the truth about what happened: Nucera had

done what Roohr and Guido said he did. As the District Court

concluded, in so reasoning, she drew on her life experiences.

Lakhani, 480 F.3d at 185 (quoting United States v. Stansfield,

101 F.3d 909, 914 (3d Cir. 1996)).

42

She also found it troubling that her White colleagues did not

share that viewpoint. The level and vehemence of her

“trouble”—even outrage—is of no consequence at this point.

Jury deliberations can be heated, but that is not a concern of

the courts after the fact.

Similarly, we decline to hold that expressions of racial

animus among jurors are enough to invoke the Peña-Rodriguez

exception. On that, we agree with the Government that the

Sixth Circuit’s opinion in United States v. Robinson shows

why we should reject Nucera’s argument. There, the

defendants sought a new trial after two Black jurors alleged

that when they expressed doubt about the defendants’ guilt, the

White foreperson said that “she ‘[found] it strange that the

colored women are the only two that can’t see’” and that she

thought they “were protecting the defendants because they felt

they ‘owed something’ to their ‘black brothers.”’ Robinson,

872 F.3d 760, 768 (6th Cir. 2017). The district court denied the

motions because Rule 606 barred use of the juror’s statements

to impeach the verdict. Id. at 769. The Supreme Court decided

Peña-Rodriguez while their case was pending appeal, so the

defendants urged the Sixth Circuit to find that its racial bias

exception applied. Id. But the Sixth Circuit agreed with the

district court that the foreperson’s statement was not the “clear

statement” Peña-Rodriguez14 demanded. Id. at 770. And it

14

The district court denied the defendants’ motion because

they gathered evidence of the foreperson’s misconduct in

“violation of both a local court rule and a specific

admonishment from the bench not to contact jurors.”

43

reasoned that even though the foreperson “impugn[ed] [the

Black jurors’] integrity based on their shared race with the

defendants, she never said anything stereotyping the

defendants based on their race,” much less that “she voted to

convict [the defendants] because they were African-

American.” Id. at 771 (emphasis added).

To distinguish Robinson, Nucera urges that

Richardson’s statements were worse than the foreperson’s

comments there, and through those statements, she

“demonstrated her own racial bias as a motivating factor in her

vote to convict.” Reply Br. 2. But Nucera has not shown that

Richardson voted to convict him because he is White.

Ironically, the closest thing Nucera offers is Juror Eleven’s

statement to Richardson and the other Black jurors—as

Richardson recounts it in the Inquirer article—that “[t]he only

reason you African American women are voting this way is

because you’re black.” App. 163. But that falls short here, just

as it did in Robinson.

Like the District Court, we also reject Nucera’s

alternative argument that Peña-Rodriguez applies to evidence

that a juror convicted the defendant because of negative

experiences they had based on their own race. Nucera does not

offer a single case supporting that argument, and even if he did,

Robinson, 872 F.3d at 770. But the Sixth Circuit held that the

exception in Peña-Rodriguez “would not apply even if the

defendants had not” done so and the evidence “was properly

before the district court.” Id.

44

there is no clear evidence that Richardson or any other juror

did so here.

Jurors faced off over a central question: who was telling

the truth—Roohr and Guido, or the many witnesses the FBI

interviewed? In answering that question, the jurors split over

the version of events each of them would accept. As

Richardson explained in the Inquirer article, the recording of

Nucera’s language persuaded her that Roohr and Guido were

telling the truth, and Nucera was guilty of the crimes for which

he was charged. She reached that conclusion based on her life

experiences as a Black woman. Viewed in context, her

statements do not satisfy the Peña-Rodriguez exception.

Accordingly, we hold that Rule 606(b) barred the

District Court from considering Nucera’s evidence of juror

misconduct, and the District Court did not abuse its discretion

in denying his motion for a new trial or an evidentiary hearing.

B. The District Court’s Hearsay Ruling Was

Not Error

Nucera argues on appeal that the District Court

improperly limited his ability to use Stroye’s out-of-court

statement about the incident at the hotel. The FBI interviewed

Stroye during its investigation, and Nucera says the statement

Stroye gave shows Nucera did not commit the alleged assault.

Thus, the District Court should have let him confront an FBI

witness with the fact that Stroye made the statement so that he

could show that the FBI conducted a flawed investigation. We

disagree.

45

On December 1, 2016, Stroye gave a statement to the

FBI describing rough interactions with other BTPD officers at

the scene. The FBI noted that Stroye recounted that, after the

incident in the hotel hallway, he had been pushed “into the

front door [of a police cruiser by] a white male with no facial

hair and a ‘military style’, short haircut.” App. 217. This

description did not match Nucera, and it suggested that an

officer other than Nucera had carried out the alleged assault in

the hallway. Nucera moved to introduce Stroye’s statement as

evidence that the FBI did not investigate others for the alleged

assault, though he assured the District Court he would not offer

it for the truth of the matter asserted. 15 If introduced for the

truth of what Stroye said, the statement would be inadmissible

hearsay unless an exception applied. Yet even if the statement

was admitted exclusively for Nucera’s stated purpose, the jury

would hear the statement for what it was—Stroye saying

someone other than Nucera assaulted him. So the District

Court had to decide whether the statement should be admitted

as having come from Stroye, given the likelihood that the jury

could not help but consider it for its truth.

Federal Rule of Evidence 403 gave the District Court an

excellent tool to reason through the conundrum, and it applied

the Rule’s balancing test to weigh the unfair prejudice the

15

This was the first time Nucera confirmed for the District

Court his desire to introduce the statement, though Nucera had

told the Government that he might seek to introduce it, and the

Government had filed a motion in limine to preclude its

admission, which the District Court denied without prejudice.

46

statement would create against its probative value to show the

FBI’s investigative shortcomings. The District Court

concluded the former outweighed the latter and excluded the

statement, though the Court let Nucera confront the FBI’s

witness with its substance as showing the FBI’s failure to

follow up. Nucera contends on appeal that the District Court

erred in its Rule 403 analysis because it failed to identify the

prejudice the Government would suffer if the statement were

admitted. He also contends that the District Court erred by not

concluding that the “trustworthiness” exception to hearsay

applied.

Nucera’s argument on Rule 403 faces two problems.

First, he never objected to the District Court’s Rule 403

balancing, thus waiving his argument that the District Court

did not explain the prejudice. So we review for plain error. That

standard requires Nucera “to show that there is: (1) an error;

(2) that is ‘clear or obvious’; and (3) that ‘affected [his]

substantial rights.’” United States v. Gonzalez, 905 F.3d 165,

182–83 (3d Cir. 2018). The standard imposes a difficult

burden.

The second problem is that the District Court did not err

at all, let alone plainly. The Supreme Court has explained that

“[t]he primary justification for the exclusion of hearsay is the

lack of any opportunity for the adversary to cross-examine the

absent declarant whose out-of-court statement is introduced

into evidence.” Anderson v. United States, 417 U.S. 211, 220

(1974). That diminished opportunity was precisely the

prejudice Nucera’s use of the statement created: it would have

47

eliminated the Government’s ability to conduct a meaningful

cross-examination of the declarant, Stroye. And the District

Court signaled that inability would be fatal when it told Nucera

that Stroye “is available today if you want to put him on the

stand.” Supp. App. 940. Yet Nucera chose not to call Stroye as

a witness. So the District Court was correct that the prejudice

of admitting the statement outweighed any value to Nucera of

pointing out that the FBI did not follow up on leads or other

suspects, and Nucera was able to make that point by attacking

the FBI’s investigation in other ways.

Moreover, the District Court satisfied our requirements

for a proper Rule 403 balancing. Though “[w]e prefer that the

district court show its work” in a Rule 403 balancing, “we will

affirm so long as it makes clear that it did the weighing itself.”

United States v. Heatherly, 985 F.3d 254, 265 (3d Cir. 2021).

The District Court did so here by concluding on the record that

the balance of probative value and unfair prejudice tipped

heavily toward the latter and then excluding the statement on

that basis. Having shown its work, we will affirm the District

Court’s ruling.

Nucera also urges that the statement qualified for the

exception to hearsay found in Federal Rule of Evidence 807.

That exception lets a court admit an otherwise inadmissible

hearsay statement if the statement “is supported by sufficient

guarantees of trustworthiness” and “is more probative on the

point for which it is offered than any other evidence that the

proponent can obtain through reasonable efforts.” Fed. R.

Evid. 807(a). We have cautioned that this “residual exception”

48

applies “only when certain exceptional guarantees of

trustworthiness exist and when high degrees of probativeness

and necessity are present.” United States v. Bailey, 581 F.2d

341, 347 (3d Cir. 1978). Nucera apparently made this argument

in a brief he sent to the District Court at 1:30 am on the morning

of the hearing and did not docket until five days later, all while

never raising Rule 807 at the hearing. So he arguably waived

the argument, but in any case, it fails on its own terms.

Nucera urges there are several reasons to find Stroye’s

statement trustworthy under Rule 807 based on the

circumstances under which he made it, namely Stroye made

the statement in the comfort of his own home, and with his

attorney present; he faced criminal penalties under 18 U.S.C. §

1001 if he lied; he had no motive to lie; and he confirmed the

same version of events in his meetings with agents and

prosecutors. But trustworthiness has as much to do with the

circumstances of the declarant’s observation of the matter as it

does with the circumstances of making the statement after the

fact. Nucera addresses only the latter. But there are clear

reasons to question the former: among other things, the

Government urges that Stroye had been pepper sprayed,

affecting his ability to see who pushed him. Also, the

Government’s theory of the event was that the attack happened

from behind. All of that undermines Nucera’s contention that

Stroye’s statement was trustworthy.

Perhaps more importantly, a hearsay statement is only

admissible under Rule 807 if “it is more probative on the point

for which it is offered than any other evidence that the

49

proponent can obtain through reasonable efforts.” Fed. R.

Evid. 807(a)(2). Stroye was available to testify, and his in-

court testimony about who assaulted him would have been

more probative on that point than the hearsay statement would

have been. Accordingly, Stroye’s statement was not admissible

under Rule 807.

Whether or not Stroye’s statement could have been

admitted under the hearsay rule, the District Court would still

have been correct to exclude it based on Rule 403 because the

lack of opportunity for cross-examination risked unfair

prejudice that outweighed its probative value. So we find no

error in the District Court’s ruling, and we will affirm.

C. The Unanimity Instruction Was Not

Confusing

Nucera next argues that the District Court erred by

“confusing” the jury with its instruction about the specific

unanimity required to convict Nucera for giving a false

statement. Nucera Br. 49. He claims that the District Court’s

final instruction could have led jurors to believe that “each

individual juror must find that at least one—as opposed to all—

of the four allegedly false statements were made by Appellant,

but not that all jurors had to be unanimous as to which of the

statements was made.” Nucera Br. 50.

Federal Rule of Criminal Procedure 30 puts an

important limit on appellate claims that a jury instruction was

improper:

50

No party may assign as error any

portion of the charge or omission

therefrom unless that party objects

thereto before the jury retires to

consider its verdict, stating

distinctly the matter to which the

party objects and the grounds of

the objection.

United States v. Russell, 134 F.3d 171, 178 (3d Cir. 1998)

(quoting Fed. R. Crim. P. 30). As we explained in Russell, Rule

30 exists “to provide the district court an opportunity to correct

potential problems in jury instructions before the jury begins

its deliberations.” Id. (citing United States v. Logan, 717 F.2d

84, 91 (3d Cir. 1983)) (emphasis added).

Rule 30 governs the outcome here. Before instructing

the jury, the District Court held a charging conference with the

parties during which Nucera persuaded the Court to give a

more precise unanimity instruction. The District Court obliged

Nucera again when something in the Government’s closing

troubled Nucera. Both times, the District Court did precisely

what Nucera asked and the way he asked it be done. Nucera

never objected. Once the jury retired to deliberate, Rule 30

barred any challenge to the instructions. Because Nucera failed

to challenge the instructions before deliberations, we review

for plain error, id. at 180, and on this record, we find none.

Before giving his summation, and with the jury

excused, Nucera raised his concern that the jury instruction

may not have clearly communicated that, to convict, the jury

51

must be unanimous in concluding that any of the statements

were false. When the jury returned, the District Court clarified

the false statements instruction as Nucera requested:

THE COURT: All right. Have a

seat, ladies and gentlemen. Before

we hear from [Nucera’s counsel], I

just want to make sure I made

myself clear.

Charge 36, about the false

statements, and I said you only

need to find –you’re going to have

to find one of the four [statements]

to have met all of the five

elements. Remember, your vote

has to be unanimous as to those.

Supp. App. 1196. We discern no error in the District Court’s

instruction, let alone a plain one, and we note that, apart from

urging juror confusion based on the affidavits, Nucera points

to no case that casts doubt on the correctness of the instruction

given here.

So we will affirm the District Court’s instruction.

D. The District Court Erred in Part in Its

Application of the Guidelines

The District Court sentenced Nucera on May 26, 2021.

The Presentence Investigation Report (PSR) calculated “an

offense level of 12” and assigned Nucera a criminal history

52

category of one “because [he had] no criminal record, yielding

a recommended sentence of 10 to 16 months.” App. 28. To

reach its offense calculation, the PSR began with the base

offense level of 6 required by § 2B1.1(c)(3), “[t]he guideline

for a violation of 18 U.S.C. § 1001(a)(2).” PSR ¶ 26. It then

used the provision in § 2B1.1(c)(3) permitting a cross

reference when “the conduct related to the count of conviction

establishes an offense specifically covered by another

guideline in Chapter Two.” PSR ¶ 26. Based on that provision,

the PSR concluded that because the count of conviction

asserted that Nucera’s lie was about his civil rights violation, it

was appropriate to cross reference the civil rights guideline

§ 2H1.1, which resulted in an increase of 6 offense levels. The

District Court accepted the guideline calculation, and it varied

from the guideline based on the nature of Nucera’s lies, as we

discuss below, to impose a sentence of twenty-eight months.

As for the application of the cross reference provision,

the District Court noted that there was “very little law on [the]

subject” and that the issue “ha[d] not come up very often on

this specific cross reference.” App. 38. The District Court

believed that the Supreme Court had eased the interpretive task

by issuing recent guidance that sentencing courts could apply

an unambiguous guideline using its plain text. And in the

District Court’s view, § 2B1.1(c)(3)’s directive was clear: if

the “conduct set forth in the count of conviction establishes an

offense specifically covered by another Guideline in Chapter 2

. . . apply that other Guideline.” App. 38. The District Court

agreed with the Government that Count Three included the acts

of the civil rights violation “because [that count] specifically

53

refer[ed] to the incident in which [Nucera] slammed [Stroye’s]

head into the [doorjamb] during the arrest after [Stroye] had

been restrained and handcuffed.” App. 38–39. So the Court

overruled Nucera’s objection and found that the PSR was

correct to use the cross reference from § 2B1.1(c)(3) to §

2H1.1.

In short, the District Court held that, because Count

Three contained language related to the assault, the conduct in

that count established a civil rights violation and permitted a

cross reference to the civil rights guideline. But we believe that

the cross reference should not have applied. Section

2B1.1(c)(3) instructs that “[i]f . . . the defendant was convicted

under a statute proscribing false, fictitious, or fraudulent

statements or representations generally [and] the conduct set

forth in the count of conviction establishes an offense

specifically covered by another guideline in Chapter Two . . .

apply that other guideline.” The District Court was right that

there is little guidance on how to apply the provision, and we

note this is a case of first impression in our Court. But the

available caselaw compels us to read the cross reference more

narrowly than the Government and the District Court.

At issue is the meaning of the phrase “[i]f the conduct

set forth in the count of conviction establishes an offense

specifically covered by another guideline.” § 2B1.1(c)(3). The

opinions of our sister courts help illuminate that meaning. In

United States v. Arturo Garcia, 590 F.3d 308 (5th Cir. 2009),

the defendant lied to border officials about the status of an

undocumented Mexican woman he tried to drive across the

54

U.S.-Mexico border in his pickup truck. Id. at 310. The count

of conviction alleged the defendant “made a false statement

about his passenger’s citizenship to a border officer in an

attempt to aid the female passenger’s entry into the United

States.” Id. at 316. Based on that conduct, the district court

cross referenced § 2B1.1(c)(3)(C) to § 2L1.1, “which

specifically covers Smuggling, Transporting, or Harboring an

Unlawful Alien.” Id. at 313.

The Fifth Circuit affirmed the cross reference because

the sole count of conviction alleged Garcia lied to the border

officer “in an attempt to aid the female passenger’s entry into

the United States,” and the “alien-smuggling statute,

§ 1185(a)(2), expressly covers this conduct when it makes it a

crime for any person to transport or attempt to transport from

or into the United States another person with knowledge or

reasonable cause to believe that the departure or entry of such

other person is forbidden by this section.” Id. at 316 (cleaned

up). Thus, the lie itself “established” the offense of aiding the

passenger’s entry into the United States. Said another way, the

conduct of lying to federal officials constituted the cross

referenced offense of attempting to aid the illegal entry.

The defendant in United States v. Genao, 343 F.3d 578,

581 (2d Cir. 2003), was similarly convicted of making a false

statement under 18 U.S.C. § 1001, and the count of conviction

alleged that he made a false innocence proffer to federal

investigators about when he knew that certain funds came from

illegal sources. The Government sought a cross reference to the

obstruction of justice guideline on the theory that the defendant

55

lied to investigators so that they would not convene a grand

jury to indict him. Id. There was no general challenge to the

application of the cross reference, but the defendant convinced

the court that the charged conduct had to establish the exact

elements of the offenses underlying the obstruction of justice

guideline. Id. at 582–83. Because the lying offense as charged

did not include all the elements of the obstruction offenses, the

Second Circuit affirmed the district court’s refusal to apply the

cross reference. Id. at 585–86. Thus, the Court held that the lie

did not establish the second offense just because it obstructed

justice; the lying as charged also had to include and establish

all the elements of the obstruction offenses for the cross

reference to apply. Id.

These two cases suggest that the conduct of lying must

constitute the cross referenced offense. In Garcia, the lying

constituted aiding the entry of an undocumented person, while

in Genao, the lying did not constitute obstruction. The cases

tell us “establish” means “constitute” or “equate to.” We hold

that a cross reference under § 2B1.1(c)(3) is appropriate only

when the defendant’s conduct of making the false statement

itself constitutes or establishes the offense addressed in the

other guideline.16 Here, the lying did not constitute, or

16

The District Court's view that “the conduct set forth in the

count of [Nucera’s] conviction” included conduct other than

lying could raise concerns that the cross reference provision is

ambiguous. But the parties have not urged this interpretation.

And even if we examined the text, structure, history and

purpose of the cross reference provision to confirm its

56

establish, the civil rights violation. Instead, Nucera lied about

whether he had committed a civil rights violation.

Nucera’s situation is similar to United States v. Bah, 439

F.3d 423, 426 (8th Cir. 2006). Bah pled guilty to making false

statements under 18 U.S.C. § 1001 for his involvement in a

fraudulent immigration documents scheme. Id. The count of

conviction alleged Bah falsely told “an Immigration and

Customs Enforcement agent that he did not know the purpose

of his and [an accomplice’s] overnight trip to Iowa from

Maryland, when in truth and in fact, [Bah] knew the purpose

of the trip was to pick up a package at the Post Office in Cedar

Rapids, Iowa” containing fraudulent immigration documents

used to obtain visas from foreign consulates. Id. at 427–28. The

district court relied on testimony from an Immigration and

Customs Enforcement (ICE) agent to cross reference “the more

punitive guideline of § 2L2.1 (the sentencing guideline for

trafficking in immigration documents or making a false

statement with respect to the immigration status of another).”

Id. at 426.

The Eighth Circuit held that the district court erred in

using the cross reference. Even though the ICE agent’s

ambiguity, as our precedent instructs, see United States v.

Adair, 38 F.4th 341, 349 (3d Cir. 2022); United States v. Nasir,

17 F.4th 459, 471 (3d Cir. 2021) (en banc), we would still

conclude that the provision is not genuinely ambiguous, and

we would also conclude that our interpretation limiting the

conduct to lying is the correct one.

57

testimony showed Bah violated something more serious than

18 U.S.C. § 1001, “the conduct set forth in the count of

conviction” still failed to “establish that Bah committed an

offense punishable pursuant to § 2L2.1.” Id. at 428. Bah lied

about what he knew, but that lie did not constitute either of the

offenses the district court cross referenced under § 2L2.1.

Similarly, here, Nucera lied about what he did, but his lie does

not constitute or establish a civil rights violation. We therefore

conclude that the District Court should not have applied the

cross reference to increase Nucera’s offense level, and we will

remand for resentencing.17 Because we are vacating Nucera’s

17

Application Note 17 buttresses our conclusion that the cross

reference does not apply here:

Cross Reference in Subsection

(c)(3).—Subsection (c)(3)

provides a cross reference to

another guideline in Chapter Two

(Offense Conduct) in cases in

which the defendant is convicted

of a general fraud statute, and the

count of conviction establishes an

offense involving fraudulent

conduct that is more aptly covered

by another guideline.

But we need not rely on this note as we find no ambiguity in

the guideline itself. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400,

2414–16 (2019).

58

sentence, we need not address his challenge to its substantive

reasonableness.

VI. CONCLUSION

For the reasons above, we will affirm the District

Court’s denial of Nucera’s motion for a new trial or an

evidentiary hearing, as well its evidentiary ruling and its

instructions to the jury about unanimity. But we will vacate the

District Court’s sentencing order and remand for further

proceedings consistent with this opinion.

59

United States of America v. Frank Nucera, Jr., No. 21-2115

______________

JORDAN, Circuit Judge, concurring.

I join today’s opinion but write separately to underscore

the duty of trial courts to contemporaneously investigate

credible allegations of juror misconduct.

As our opinion explains, the Supreme Court in Pena-

Rodriguez v. Colorado identified a narrow constitutional

exception to the no-impeachment rule embodied in Federal

Rule of Evidence 606(b). The Court there said the “Sixth

Amendment requires that the no-impeachment rule give way”

where “a juror makes a clear statement that indicates he or she

relied on racial stereotypes or animus to convict a criminal

defendant[.]” 580 U.S. 206, 225 (2017). In other words, the

constitutional exception is triggered only by a juror’s statement

that the juror voted to convict based, in some significant

measure, on the defendant’s race.

That exception was and remains the single

constitutional limitation on the no-impeachment rule.

Although adopted by Congress in 1975 when it approved Rule

606(b), Pub. L. No. 93-595, § 1, 88 Stat. 1926, 1929-1948

(1975), the no-impeachment rule has existed for centuries at

common law, affording finality and stability to jury verdicts.

Pena-Rodriguez, 580 U.S. at 215, 217-18; see also McDonald

v. Pless, 238 U.S. 264, 267 (1915) (“[L]et it once be established

that verdicts solemnly made and publicly returned into court

can be attacked and set aside on the testimony of those who

took part in their publication and all verdicts could be, and

many would be, followed by an inquiry in the hope of

1

discovering something which might invalidate the finding.”).

If finality in our trial-by-jury system is to be maintained, courts

must resist expanding the constitutional exception, even when

faced with evidence of juror misconduct.

Knowing that, however, does not make this an easy case

for me. On the contrary, the circumstances that came to light

after the verdict here are so disturbing it is hard to let the

verdict stand. If the sworn statements of four separate jurors

are to be believed, Juror Pamela Richardson berated and

threatened white jury members in her effort to strongarm them

into convicting Nucera. They allege that she repeatedly called

them racists, that she said they were inclined to acquit Nucera

because of their racism, and that they would only be happy with

an all-white jury. She allegedly declared that, “[e]very time I

hear someone in this room say ‘I’m not prejudiced, I have a

black friend[,’] if I had a gun, I would shoot each one of you.”

(App. at 176 (Juror 3 Affidavit); accord 184 (Juror 4 Affidavit)

(“[You just don’t know. I could shoot you all.”), 197 (Juror 2

Affidavit) (“You are lucky I don’t have a gun because I would

shoot some of you.”), 204 (Juror 11 Affidavit) (same).)

Due to what one juror described as an atmosphere of

“bullying, racial tensions, and unfounded accusations[,]” (App.

at 166-67 ((Juror 3 Affidavit)), and to avoid being branded as

racists, the four affiant-jurors voted to convict Nucera on

Count Three, even though they now assert that they believed

him to be innocent. (App. at 167 (Juror 3 Affidavit) (“As the

deliberations progressed, I felt like I was being labelled as a

racist if I did not find Frank Nucera guilty beyond a reasonable

doubt.”); 176-77 (Juror 3 Affidavit) (“I was … particularly

[troubled by] the accusations of racism directed at me … I was

essentially shamed into voting guilty regarding Count Three,

2

despite that I did not want to do so.”); 185 (Juror 4 Affidavit)

(“[H]er comment … made me feel like I was being racist to

vote not guilty, even though not guilty was my true belief from

the evidence.”); 195 (Juror 2 Affidavit) (“Ultimately, affected

by all of the foregoing, I regrettably compromised my prior Not

Guilty vote on Count 3 and changed it to Guilty.”); 208 (Juror

11 Affidavit) (“This conduct and the comments by some other

jurors … increasingly made me feel that the other jurors were

perceiving me as a racist simply because I was voting not

guilty.”).)

In sum, it is alleged that Richardson, instead of

endeavoring to convince the other jurors to convict Nucera

based on evidence of his guilt, sought to improperly achieve

her desired outcome by hurling race-based accusations and

threats around the jury room. Guilty or not, Nucera, like all

criminal defendants in our constitutional order, deserved an

unbiased jury of his peers, people who would discuss the case,

not each other’s skin color. And he was likewise entitled to

jurors who would be influenced solely by the evidence and

persuasive force of proper argument, not by threats and

vituperation. If what the other jurors have said about

Richardson’s remarks and about their own votes is true, he

didn’t get that. Richardson stopped short of announcing that

she was voting to convict Nucera because he is a white man,

but, given that Nucera was charged with a racist hate crime,

there is a terrible irony in the racially charged language that is

said to have poisoned the jury deliberations.

As bad as the allegations about Richardson’s statements

are (and they are, I recognize, only allegations; she would

likely give a different account of her remarks, but I am taking

the allegations as true for purposes of this discussion), they

3

nevertheless do not amount to a clear statement about her vote

to convict, as Pena-Rodriguez demands. Indeed, given the

appalling evidence of Nucera’s racism and abuse of authority,

one could conclude that Richardson would have been just as

threatening and noxious in her comments during jury

deliberations if Nucera had not been white.

Nor did the four jurors who took the brunt of

Richardson’s animus make any clear statements that their votes

to convict were based on Nucera’s race. As today’s opinion

points out, their statements instead show that they convicted

him for fear of being themselves branded as racist. That is a

distinction with a serious difference. See Pena-Rodriguez, 580

U.S. at 225-26 (holding that, for the no-impeachment rule to

give way, “there must be a showing that one or more jurors

made statements exhibiting overt racial bias,” and that the

overtly hostile statement show that “racial animus was a

significant motivating factor in the juror’s vote to convict”).

This case therefore illustrates the unsettling reality that

there may simply be no remedy for juror misconduct if it comes

to light too late, even when there is a real chance that the

misconduct has undermined a defendant’s due process right to

“a jury capable and willing to decide the case solely on the

evidence before it[.]” Smith v. Phillips, 455 U.S. 209, 217

(1982). Because of the countervailing value our society places

on the confidentiality and finality of jury deliberations, a value

of such high importance that it is given the force of law in Rule

606(b), we are generally not free to correct even egregious

wrongs once the jury has rendered its verdict. Although “we

hope that jury deliberations proceed in a manner respectful of

every juror’s opinion,” testimony “concerning intimidation or

harassment of one juror by another falls squarely within the

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core prohibition of the Rule.” United States v. Lakhani, 480

F.3d 171, 185 (3d Cir. 2007); see also id. at 184 (“[E]vidence

of discussions among jurors, intimidation or harassment of one

juror by another, and other intra-jury influences on the verdict

is within the rule, rather than the exception, and is not

competent to impeach a verdict.”)

Fortunately, defendants have “other sources of

protection” for their “right to a competent jury.” Tanner v.

United States, 483 U.S. 107, 127 (1987). First, trial courts and

counsel have the opportunity to examine the “suitability of an

individual for the responsibility of jury service … during voir

dire.” Id. Second, “during the trial the jury is observable by

the court, by counsel, and by court personnel.” Id. And third,

“jurors are observable by each other, and may report

inappropriate juror behavior to the court before they render a

verdict.” Id.

Without vigilance on the part of trial participants and

court personnel, however, these sources of protection can end

up being ineffectual. Here, Juror 2’s affidavit states that she

twice attempted to alert the District Court about “disrespect

and racial comments that were being made in the jury room

during deliberations.” (App. at 194.) She says she told the

Deputy Clerk “that some of [the] jurors were being called

racists by other jurors[,]” to which the Deputy Clerk responded

that, “if [she] had any further issues, [she] should write a note

to the [j]udge.” (App. at 194.) That response suggested the

only avenue by which Juror 2 could communicate improper

conduct to the District Court was by a written note delivered

through the jury foreperson. After being rebuffed by the

Deputy Clerk, Juror 2 understandably declined to write a note

because she feared other jurors’ reactions if the foreperson read

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the note aloud. The result was that a serious problem that

should have been promptly addressed was not.

Once Richardson made her comment about shooting

other jurors, Juror 2 again contacted the Deputy Clerk,

explaining that the atmosphere “had gotten worse.” (App. at

198.) This time, the Deputy Clerk informed the presiding

judge, who then met with the jurors in their assembly room.

Juror 2 stated in her affidavit that she could not remember

whether she specifically mentioned Richardson’s threat, but

she did recall crying as she “told the [j]udge that there was

serious disrespect going on in the jury room.” (App. at 198.)

The District Judge, widely and rightly respected, is said to have

advised the jurors that “personal feelings [had] to be left out of

the deliberation room[.]” (App. at 199.) Had he known of

threats, he would surely have inquired further, but, at this

juncture, we can only guess what he was told. Whatever it was,

though, was not plain enough to convey what we are being told

now. Again, timing matters.

If we are to maintain the careful balance between

protecting a defendant’s right to a competent jury and

respecting the post-verdict confidentiality and finality of jury

deliberations, jurors must promptly and clearly report

misconduct, and court personnel in turn must promptly report

allegations of jury misconduct to the trial judge. If the judge

learns of serious misconduct before the jury delivers its verdict,

there should then, of course, be an immediate investigation

adequate to address the seriousness of the allegations. Cf.

Smith at 217 (“[A] trial judge [must be] ever watchful to

prevent prejudicial occurrences and to determine the effect of

such occurrences when they happen.” (emphasis added)).

Although Rule 606(b) protects the finality of verdicts, neither

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its express terms nor its purpose prevents inquiry into juror

misconduct before a verdict is rendered.

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