Petition for Writ of Certiorari — Rickey Johnson, aka Sealed Defendant 1, aka Neil Dawn Defarren, Petitioner v. United States

Supreme Court briefOct 10, 2025

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PETITIONER’S APPENDIX

Case 22-1289, Document 58-1, 09/06/2024, 3633422, Page1 of 38

22-1289

United States v. Johnson

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2022

No. 22-1289

UNITED STATES OF AMERICA,

Appellee,

RICKEY JOHNSON, AKA SEALED DEFENDANT 1,

AKA NEIL DAWN DEFARREN,

Defendant-Appellant.

On Appeal from the United States District Court

for the Southern District of New York

ARGUED: JUNE 6, 2023

DECIDED: SEPTEMBER 6, 2024

Before:

CHIN and MENASHI, Circuit Judges, and ENGELMAYER,

Judge. *

Judge Paul A. Engelmayer of the United States District Court for the

Southern District of New York, sitting by designation.

Pet. App. 001a

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Defendant

Rickey

Johnson

was

convicted

making

threatening interstate communications and of threatening United

States officials. He argues that five purported errors over the course

of the trial require vacatur of his convictions: (1) the district court

proceeded with eleven jurors prior to deliberations and without

stipulation from the parties, (2) the district court dismissed two jurors

for other than “good cause,” (3) an email from one of the victims was

admitted in violation of the rule against hearsay evidence and in

violation of the Confrontation Clause, (4) the district court

erroneously delivered an “uncalled witness charge” prohibiting

adverse inferences from a lack of testimony, and (5) the district court

improperly admitted expert testimony as lay testimony. With respect

to each argument, we conclude either that the district court did not

err or that the error was harmless. We affirm the judgment of the

district court.

Judge Chin dissents in a separate opinion.

COLLEEN P. CASSIDY, Federal Defenders of New York,

New York, NY, for Defendant-Appellant.

KYLE A. WIRSHBA, Assistant United States Attorney

(Patrick R. Moroney, Stephen J. Ritchin, Assistant United

States Attorneys, on the brief), for Damian Williams,

United States Attorney for the Southern District of New

York, New York, NY, for Appellee.

MENASHI, Circuit Judge:

In 2021, Defendant-Appellant Rickey Johnson posted videos

and sent private messages on Instagram in which he threatened Fox

Pet. App. 002a

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

and Representative Lauren Boebert. Given the seriousness of the

threats, Johnson was indicted on four counts. Counts One and Four

charged Johnson with making threatening interstate communications

in violation of 18 U.S.C. §§ 875(c) and 2; Counts Two and Three

charged Johnson with threatening United States officials in violation

of 18 U.S.C. §§ 115(a)(1)(B), (b)(4), and 2.

During the five-day jury trial in February 2022, the district

court dismissed three jurors: Alternate No. 2, Juror No. 7, and Juror

No. 2. The district court dismissed Alternate No. 2 on the second day

of the trial due to a medical emergency. It dismissed Juror No. 7 and

Juror No. 2 on the final day of the trial—just hours before the jury

retired to deliberate—due to a lack of childcare arrangements and a

finding of bias, respectively. The three dismissals reduced the jury to

eleven members.

At trial, the jury did not hear directly from the victims.

However, the jury did hear testimony from others who had contact

with the victims. Special Agent Brandon Kelley, a member of the

Threat Assessment Section of the U.S. Capitol Police, testified that he

examined the threats and contacted the victims to make security

arrangements. The director of corporate security at Fox Corporation,

Clifford Cid, also testified. During Cid’s testimony, the government

offered into evidence an email from Gutfeld to Cid that reported

receiving a death threat from Johnson’s Instagram account.

At the close of the trial, over the objection of the defense and

without stipulation from the parties, the district court permitted the

eleven-member jury to proceed to deliberate. After about one day of

deliberation, the jury returned a guilty verdict on Counts One, Two,

and Four. At the close of the following day, the jury returned a verdict

Pet. App. 003a

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of not guilty on Count Three. The district court sentenced Johnson to

twenty-four months of imprisonment on each count of conviction—

to run concurrently and to be followed by three years of supervised

release—and imposed a mandatory special assessment of $300.

On appeal, Johnson argues that five purported errors by the

district court require vacatur of his convictions: (1) the decision to

proceed to deliberation with eleven jurors, (2) the dismissals of

Alternate No. 2 and Juror No. 2, (3) the admission of Gutfeld’s email

to Cid, (4) the delivery of an “uncalled witness” charge to the jury

prohibiting adverse inferences to be drawn from the absence of victim

testimony, and (5) the admission of Kelley’s testimony as lay rather

than expert testimony. With respect to each purported error, we

conclude either that the district court did not err or that the error was

harmless. We affirm the judgment of the district court.

BACKGROUND

On the morning of January 30, 2021, Rickey Johnson sent a

series of private messages to Fox News host Greg Gutfeld on

Instagram. The messages were brief but stated unambiguously “you

will be killed.” App’x 566. Gutfeld forwarded these messages by

email to Clifford Cid, the director of corporate security at Fox

Corporation, with the subject line “Death threat.” Id. at 29. Gutfeld

added the following note: “Mentions me and Jesse [Watters] and

Katie Pavlich. That is coming thru from his Instagram account to my

Facebook. If you go to his Instagram account which is under his same

name you’ll see that he says he’s in [M]anhattan.” Id. Cid notified the

New York City Police Department (“NYPD”) about the messages.

On February 3, 2021, Johnson posted three videos on his

Instagram account. Each video featured clips from Fox News with

Pet. App. 004a

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Johnson speaking over the footage. The first video threatened Gutfeld

and Senator Joe Manchin. As the camera zoomed in on Gutfeld

appearing in a segment with other commentators, Johnson stated:

You know how y’all sit and talk about and support the

people who use the Constitution to kill people? I am

going to take your life. I am going to tell you before I do

it, like I am doing right now, but I’m gonna look you in

your fucking eye, and I’m gonna take your fucking life,

and everyone that knows I took your life is gonna know

why.

Id. at 576-77. The video then featured a clip of Manchin. As the camera

focused on Manchin, Johnson stated: “He’s dead. He is fucking dead.

He’s a Republican that wants to defund the people.” Id. at 571.

Johnson continued:

Joe Manchin will be executed. He can stop the American

people’s money. I don’t give a fuck about all this politics.

That bitch is on American soil. 450,000 Americans, on

American soil. I wanna know who’s who. We gonna see

how these motherfuckers out here vote. I’m killing their

ass. You think I’m joking. And you gonna know I fucking

did it.

Id. at 574. In the caption of the video, Johnson tagged Manchin’s

official Instagram account and wrote “bitch, you are a terrorist, and

will be held accountable for your treason.” Supp. App’x 1.

Johnson made similar threats against Fox News host Laura

Ingraham and Representative Lauren Boebert in the two other videos

he posted on February 3. Over footage of Ingraham speaking, Johnson

said:

Laura, you should stop but you’re not because you’re

paid to kill people. Laura Ingraham, you will be killed. I

Pet. App. 005a

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want you dead. You are a racist, domestic terrorist. … I

want this white woman dead. I want Laura Ingraham

dead. I want Laura Ingraham murdered. Shout-out

Washington, D.C. I’m gonna kill you, Laura

Ingraham. … Laura Ingraham, I am going to personally

kill you. No, we’re targeting on you. I am going to kill

you.

App’x 581-85. Over footage of Boebert, Johnson said: “You don’t

terrorize me. I’m going to kill you. No no no no no. We kill people

who violate the Constitution. You are a self-proclaimed terrorist to

the American people.” Id. at 579. When in the footage Boebert smiled,

Johnson stated: “Smile, I am going to kill you. You are proud to

terrorize the United States Constitution.” Id. In the caption, Johnson

tagged Boebert’s official Instagram account along with the official

accounts of Governor Ron DeSantis and the U.S. Department of

Justice.

The NYPD, having learned of Johnson’s Instagram account

from Cid, alerted the U.S. Capitol Police. On February 4, 2021, Special

Agent Brandon Kelley of the Threat Assessment Section of the Capitol

Police reviewed the Instagram account. He then contacted the offices

of Manchin and Boebert. Manchin’s office requested that security

patrols be stationed outside the senator’s residence in West Virginia,

and Kelley arranged the patrols. Kelley also informed Boebert’s chief

of staff about a “possible threat.” Id. at 208-09. Kelley requested

Boebert’s schedule in order to provide extra security in Washington

and asked if she wanted patrols at her home in Colorado. Boebert did

not request security in Colorado, however, so it was not arranged. The

NYPD arrested Johnson on February 11, 2021.

A superseding indictment filed on January 12, 2022, charged

four counts. Counts One and Four charged Johnson with making

Pet. App. 006a

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threatening interstate communications—to Gutfeld and Ingraham,

respectively—in violation of 18 U.S.C. §§ 875(c) and 2. Counts Two

and Three charged Johnson with threatening United States officials—

Manchin and Boebert, respectively—in violation of 18 U.S.C.

§§ 115(a)(1)(B), (b)(4), and 2.

The trial began on February 16, 2022. Twelve jurors and two

alternates were selected, and the jury heard opening statements and

testimony from Kelley. The next morning, February 17, one of the

alternate jurors—Alternate No. 2—informed the district court that she

had spent all night in the emergency room due to a swollen lip and

that she would not be able to arrive at the courthouse until the early

afternoon. The defense requested that the district court wait for

Alternate No. 2 to arrive before resuming the trial, and the

government asked for her to be dismissed so the trial could proceed.

The district court decided to dismiss Alternate No. 2 and to proceed.

That same morning, the district court also considered an

incident involving Juror No. 2. Detective David Cowan of the NYPD,

who had been involved in investigating Johnson, informed the

district court of statements that he had heard from Juror No. 2 while

standing outside the courtroom during a recess the day before.

According to Cowan, Juror No. 2 had said that “the white man stole

Manhattan from the Native Americans”; “Abraham Lincoln did not

want to free the slaves” but did so “because the northern states had

[an] interest in cheap labor”; “General Sherman and another general

from the Union Army slaughtered the plains Indians” when

constructing the intercontinental railroad; and “the white man killed

the Native Americans who had tobacco farms in the United States”

because of the financial interests of Englishmen in tobacco. Id. at 181.

Pet. App. 007a

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According to Cowan, Juror No. 2’s statements were initially

addressed to a group including the other jurors, an attorney from Fox

Corporation, and Cowan himself. But as others moved away, Juror

No. 2 directed his commentary toward Cowan. It appeared to Cowan

that Juror No. 2 provided these historical reflections unprompted.

During the same morning, the district court alerted the parties to a

second incident involving Juror No. 2 in which he apparently

“approached … the lady who brought coffee to the jurors and started

talking to her.” Id. at 167.

The district court asked Juror No. 2 about his statements to

Cowan, and Juror No. 2 denied ever speaking to Cowan and became

indignant. He demanded that the district court identify his “accuser,”

and the district court told Juror No. 2 to “calm down.” Id. at 174. Juror

No. 2 acknowledged speaking to the woman with the coffee, but he

said that he did not discuss the case with her. Id. at 175.

The government urged the district court to excuse Juror No. 2

on the grounds that he was a “disruption” to the other jurors and that

he would be unable to “remain unbiased” because he associated

Cowan—whom he believed had accused him unjustly—with the

prosecution. Id. at 183-84. The district court recognized that Juror

No. 2’s statements “certainly contradict[ed] credible testimony by

Detective Cowan as to whether he talked to Cowan,” but the district

court permitted Juror No. 2 to remain on the jury pending further

consideration. Id. at 189. Later that day, the district court observed

Juror No. 2 asleep during testimony and admonished him. Juror No. 2

responded that “[m]y eyes were opened,” and the district court said,

“Oh, no they weren’t.” Id. at 302.

Also on February 17, during Cid’s testimony, defense counsel

objected to the government’s effort to admit Gutfeld’s email to Cid on

Pet. App. 008a

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the grounds that the email was hearsay and that its admission

violated the Confrontation Clause. Defense counsel argued that the

government was trying to introduce “inadmissible hearsay by

claiming they are not offering it for its truth when that is what they

want to do” and that Johnson’s “Sixth Amendment right to confront

the witnesses against him would be in violation by having this

witness bring in statements that we believe are testimonial under

Crawford, and Mr. Johnson would not have the ability to cross-

examine this witness.” Id. at 252. After hearing argument from

defense counsel and from the government, the district court decided

that the email was an “excited utterance,” given the “relatively

compressed time frame” between when the Instagram messages were

sent and when Gutfeld composed it. Id. 259-60. 1 The district court

provided a limiting instruction to the jury that the email was “in

evidence solely for you to consider with respect to Mr. Gutfeld’s state

of mind when he received the Instagram post.” App’x 263-64.

The following morning—February 18—the district court

informed the parties that another juror, Juror No. 7, would be

excused. The juror had notified the district court that he was “unlikely

in the next couple of days to be able” to attend the proceedings due

to a lack of childcare arrangements. Id. at 399. Neither party objected,

and Alternate No. 1 replaced Juror No. 7. Twelve jurors remained.

The district court then returned to its consideration of Juror

No. 2. The district court said that it did not believe that the sleeping

incident required further action or that Juror No. 2 was “untruthful

deliberately” when questioned about talking to Cowan. Id. at 400. But

The district court referred to the timing of “the Instagram post,” but it

meant the Instagram messages that prompted Gutfeld’s email rather than

the videos that were posted four days later. App’x 260.

Pet. App. 009a

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the district court recognized that Juror No. 2 was “agitated and upset

by the inquiry, which he regarded as the product of an accusation,

and obviously, as the product of an unfair and inaccurate accusation.”

Id. The district court decided to excuse Juror No. 2, it explained,

because of bias:

It is entirely likely that [Juror No. 2] attributed what he

regards as a false or inaccurate accusation to the

prosecution team. The most obvious target is Detective

Cowan whom he knows is connected to the prosecution

team. But given his level of agitation, and his upset, I

conclude that he is at least impliedly biased against the

prosecution. The chain of events is just such that I infer

that he holds this against the prosecution. He thinks it is

unjust and he holds it against him. Now, accordingly,

this is a circumstance in which the facts support the

presumption of bias, and in any case, my conclusion as

the finder of fact on this is that he is actively biased

against the government in all of the circumstances.

Id. at 400-01.

The district court proceeded with eleven jurors without

receiving a stipulation from the parties, explaining that “[u]nder Rule

24, the case can go to the jury with 11 jurors.” Id. at 401. 2 In response,

the defense moved for a mistrial. The district court denied the motion.

Following a charge conference, the parties delivered closing

arguments, the jury was instructed, and deliberation began. In its

instructions to the jury, the district court told the jury not to draw

adverse inferences from the absence of testimony from the four

targets of Johnson’s threats:

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

Fed. R. Crim. P. 23(b).

Pet. App. 010a

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Now, there are a number of people whose names you’ve

heard during the course of the trial who did not come

here and testify. I instruct you that both sides had an

equal opportunity or lack of opportunity to call those

people as witnesses. Therefore, you should not draw any

inference or reach any conclusions as to what they would

have said had they been called. Their absence should not

affect your judgment one way or the other. You should,

however, remember my instruction that the defendant is

not obliged in a criminal case to call any witnesses or

produce any evidence.

App’x 514. The jury deliberated for two hours on February 22 and

most of February 23. Late in the afternoon of February 23, the jury

returned a verdict of guilty on Counts One, Two, and Four. The jury

returned a verdict of not guilty on Count Three at the end of the day

on February 24. On May 25, 2022, the district court sentenced Johnson

to twenty-four months of imprisonment on each count—to run

concurrently and to be followed by three years of supervised

release—and imposed a $300 mandatory special assessment. On

October 26, 2022, Johnson completed his term of imprisonment and

began his term of supervised release.

DISCUSSION

Johnson identifies five purported errors that, he argues, each

require vacatur of his convictions: (1) the district court’s decision to

proceed with eleven jurors prior to deliberation and without

stipulation from the parties, (2) the dismissal of two jurors for other

than the “good cause” that Federal Rule of Criminal Procedure 23(b)

requires, (3) the admission of Gutfeld’s email in violation of the rule

against hearsay and the Confrontation Clause of the Sixth

Amendment, (4) the delivery of the uncalled witness charge

prohibiting adverse inferences to be drawn from the absence of

Pet. App. 011a

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testimony from the victims, and (5) the improper admission of

Kelley’s testimony regarding the seriousness of the threats. With

respect to each purported error, we conclude either that the district

court did not err or that the error was harmless. We address each

argument in turn.

Johnson argues that the district court violated Federal Rule of

Criminal Procedure 23(b) when it proceeded with an eleven-member

jury before deliberation over the objection of the defense. In doing so,

according to Johnson, the district court committed a structural error

that requires the vacatur of his convictions. We agree with Johnson

that the district court erred in proceeding with an eleven-member jury

without stipulation from the parties and prior to deliberation. The

error, however, was not structural but subject to harmless error

review. We conclude that the error in this case was harmless and that

vacatur is not required.

According to Federal Rule of Criminal Procedure 23(b)(1), a

“jury consists of 12 persons unless this rule provides otherwise.” Fed.

R. Crim. P. 23(b)(1). The rule authorizes a smaller jury if, “before the

verdict,” the parties “stipulate in writing” either that “the jury may

consist of fewer than 12 persons” or that “a jury of fewer than 12

persons may return a verdict if the court finds it necessary to excuse

a juror for good cause after the trial begins.” Id. 23(b)(2). Pursuant to

a 1983 amendment to the rule, the district court “may permit a jury of

11 persons to return a verdict, even without a stipulation by the

parties,” if “[a]fter the jury has retired to deliberate,” the district court

“finds good cause to excuse a juror.” Id. 23(b)(3).

Pet. App. 012a

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“Rule 23 incorporates the ‘venerable common law tradition’ of

a twelve-member jury while allowing the district court to reduce that

number upon a finding of good cause.” United States v. Ginyard, 444

F.3d 648, 652-53 (D.C. Cir. 2006) (citation omitted) (quoting United

States v. Araujo, 62 F.3d 930, 933 (7th Cir. 1995)). The rule can make

that allowance because the Supreme Court has said that there is no

constitutional right to a twelve-member jury. “[T]he fact that the jury

at common law was composed of precisely 12 is a historical accident,

unnecessary to effect the purposes of the jury system and wholly

without significance ‘except to mystics.’” Williams v. Florida, 399 U.S.

78, 102 (1970) (quoting Duncan v. Louisiana, 391 U.S. 145, 182 (1968)

(Harlan, J., dissenting)). That decision of the Supreme Court left the

issue “to Congress and the States, unrestrained by an interpretation

of the Sixth Amendment that would forever dictate the precise

number that can constitute a jury.” Id. at 103.

We have observed, following the decision in Williams, that “the

absolute right to a jury of twelve that [defendants] possessed prior to

the 1983 amendment of Rule 23(b) is no longer viewed as a

‘substantial right’ by the Supreme Court.” United States v. Stratton, 779

F.2d 820, 834 (2d Cir. 1985). We therefore have held that the

retroactive application of amended Rule 23(b), allowing conviction by

eleven jurors, did not violate the Ex Post Facto Clause. “Whatever

disadvantage to the defendant may occur from reducing the jury size

from twelve to eleven is of insufficient proportion to give him a

constitutional right to a jury of twelve, and [it] does not affect the

substantial rights of the defendant for Ex Post Facto purposes.” Id. at

835 (citation omitted).

These prior precedents—holding that the right to a twelve-

member jury is neither a constitutional nor even a substantial right—

mean that a violation of Rule 23(b)’s twelve-member requirement

Pet. App. 013a

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cannot amount to a structural error. The general rule is that “[a]ny

error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded.” Fed. R. Crim. P. 52(a). We depart from

this harmless-error analysis only for “a limited class of fundamental

constitutional errors that defy analysis by ‘harmless error’ standards.”

Neder v. United States, 527 U.S. 1, 7 (1999) (emphasis added) (internal

quotation marks omitted). Such fundamental constitutional errors

“are so intrinsically harmful as to require automatic reversal …

without regard to their effect on the outcome.” Id. “For all other

constitutional errors”—let alone for non-constitutional errors—

“reviewing courts must apply Rule 52(a)’s harmless-error analysis

and must disregard errors that are harmless beyond a reasonable

doubt.” Id. (internal quotation marks and alteration omitted). The

Supreme Court has emphasized that “[t]he purpose of the structural

error doctrine is to ensure insistence on certain basic, constitutional

guarantees that should define the framework of any criminal trial.”

Weaver v. Massachusetts, 582 U.S. 286, 294-95 (2017) (emphasis added).

In accordance with the instructions of the Supreme Court,

“[c]ourts have recognized a limited number of structural errors, all

involving the violation of bedrock constitutional rights.” United States

v. Moran-Toala, 726 F.3d 334, 343 (2d Cir. 2013). Such an error

“requires automatic reversal and is not subject to harmless error

analysis because it involves a deprivation of a constitutional

protection so basic that in its absence, ‘a criminal trial cannot reliably

serve its function as a vehicle for determination of guilt or innocence,

and no criminal punishment may be regarded as fundamentally

fair.’” Bentley v. Scully, 41 F.3d 818, 823 n.1 (2d Cir. 1994) (quoting

Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). “The ‘highly

exceptional’ category of structural errors includes, for example, the

‘denial of counsel of choice, denial of self-representation, denial of a

Pet. App. 014a

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public trial, and failure to convey to a jury that guilt must be proved

beyond a reasonable doubt.’” Greer v. United States, 593 U.S. 503, 513

(2021) (quoting United States v. Davila, 569 U.S. 597, 611 (2013)).

In the absence of the deprivation of a constitutional right so

fundamental that the trial cannot be trusted to perform its function,

the Supreme Court “has repeatedly made clear” that we must adhere

to “the ‘general rule’ … that ‘a constitutional error does not

automatically require reversal of a conviction.’” Greer, 593 U.S. at 513

(quoting Fulminante, 499 U.S. at 306).

If the general rule applies to all constitutional errors beyond a

select few at the constitutional “bedrock,” it necessarily applies to

non-constitutional errors that are even further removed from that

foundation. Moran-Toala, 726 F.3d at 343; see also United States v.

Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) (“[G]enerally

speaking structural errors must, at a minimum, be constitutional

errors.”). Because the right to twelve rather than eleven jurors that

Rule 23(b) provides does not implicate the Constitution—at its

bedrock or otherwise—we review a violation of that rule for harmless

error. 3

We recognize that the Fourth Circuit has held that a district

court’s “decision to excuse the twelfth juror prior to deliberations and

The dissenting opinion objects that Rule 23(b) does not “by its terms”

provide “a requirement of prejudice.” Post at 20. But no constitutional

provision or procedural rule expressly provides that it applies only when

there is prejudice. We nevertheless apply a “strong presumption” that “if

the defendant had counsel and was tried by an impartial adjudicator … any

other errors that may have occurred are subject to harmless-error analysis.”

Rose v. Clark, 478 U.S. 570, 579 (1986).

Pet. App. 015a

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absent the defendant’s consent” qualified as a structural error. United

States v. Curbelo, 343 F.3d 273, 285 (4th Cir. 2003). The court said that

it could deem that error to be structural “whether violative of the

Constitution or not.” Id. at 280. We agree with the dissenting opinion,

however, that the Supreme Court and the appellate courts “have

repeatedly made clear that structural errors necessarily must affect a

defendant’s constitutional rights.” Id. at 289 (Wilkins, J., dissenting). 4

Johnson argues that a violation of Rule 23(b) should be

considered a structural error because it “affects the very ‘framework

within which the trial proceeds, rather than simply … the trial process

itself.’” Appellant’s Br. 36 (quoting Neder, 527 U.S. at 8). But the

Supreme Court has told us that convening a jury “composed of

precisely 12” is “unnecessary to effect the purposes of the jury

system” because the number twelve is “wholly without significance.”

Williams, 399 U.S. at 102. Given this precedent, we cannot conclude

that a jury must feature twelve members for the trial to “reliably serve

its function as a vehicle for determination of guilt or innocence” and

to render a judgment that “may be regarded as fundamentally fair.”

Fulminante, 499 U.S. at 310.

Other decisions have required a new trial following a violation of Rule

23(b) without a showing of prejudice. See United States v. Essex, 734 F.2d 832,

845 (D.C. Cir. 1984) (“[N]o further prejudice need be shown than that the

court did not comply with the stipulation and Rule 23(b), and that appellant

was denied her right to have her case decided by the unanimous verdict of

the 12 jurors who heard the case.”); United States v. Taylor, 498 F.2d 390, 392

(6th Cir. 1974) (“[T]he failure of the District Court to comply literally with

the terms of Rule 23 requires reversal for new trial.”); see also Araujo, 62 F.3d

at 937; United States v. Tabacca, 924 F.2d 906, 915 (9th Cir. 1991). These

decisions, however, preceded the Supreme Court’s emphasis that structural

errors include only “a limited class of fundamental constitutional errors.”

Neder, 527 U.S. at 7.

Pet. App. 016a

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In other words, deliberation by eleven rather than twelve jurors

does not alter “the framework within which the trial proceeds” but is

at most “an error in the trial process itself.” Id. Indeed, the district

court in this case dismissed the twelfth juror just before closing

arguments and the start of jury deliberation. Had the district court

waited a few hours—and dismissed the twelfth juror for cause after

the jury had “retired to deliberate”—the district court would not have

violated Rule 23(b). Fed. R. Crim. P. 23(b)(3). That small change in

timing did not implicate the fundamental fairness of the trial

procedure. 5

Johnson observes that Rule 23 originally codified the holding

of Patton v. United States, 281 U.S. 276 (1930), that the Sixth

Amendment required twelve jurors unless the defendant waived that

requirement. Reply Br. 6; see Patton, 281 U.S. at 292 (“A constitutional

jury means twelve men as though that number had been specifically

named.”). But the Supreme Court in Williams overruled that holding

of Patton, and Rule 23 has since been amended to allow the district

court to proceed with eleven jurors without the consent of the

defendant after deliberation has begun. When it revised Rule 23(b),

the Advisory Committee explained that “[p]roceeding with the

remaining 11 jurors, though heretofore impermissible under rule

23(b) absent stipulation by the parties and approval of the court, is

constitutionally permissible” pursuant to the holding of Williams. 6

We have likewise subjected the erroneous decision of a district court to

seat an incorrect juror in violation of Federal Rule of Criminal Procedure

24(c)—in effect, denying the defendant the proper twelfth juror—to

harmless error review. See, e.g., United States v. Hilts, 757 F. App’x 56, 58 (2d

Cir. 2018); United States v. Hamed, 259 F. App’x 377, 378-79 (2d Cir. 2008).

Fed. R. Crim. P. 23 advisory committee’s note to 1983 amendment.

Pet. App. 017a

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Johnson suggests that Williams was wrongly decided. See Reply

Br. 4-5. And there is some support for that position. Justice Gorsuch

has argued that “Williams was wrong the day it was decided, [and] it

remains wrong today.” Khorrami v. Arizona, 143 S. Ct. 22, 23 (2022)

(Gorsuch, J., dissenting from the denial of certiorari); see also

Cunningham v. Florida, 144 S. Ct. 1287, 1287 (2024) (Gorsuch, J.,

dissenting from the denial of certiorari) (“In Williams v. Florida, this

Court in 1970 issued a revolutionary decision approving for the first

time the use of 6-member panels in criminal cases. In doing so, the

Court turned its back on the original meaning of the Constitution,

centuries of historical practice, and a battery of this Court’s

precedents.”) (internal quotation marks and citation omitted). Justice

Gorsuch would “reconsider Williams” because the twelve-person

criminal jury was well-established “[b]y the time of the Sixth

Amendment’s adoption,” and “the Sixth Amendment was widely

understood to protect this ancient right.” Khorrami, 143 S. Ct. at 23

(Gorsuch, J.). 7

Despite these arguments, “there are not yet four votes on [the

Supreme] Court to take up the question whether Williams should be

overruled,” so we remain bound to follow that precedent.

Cunningham, 144 S. Ct. at 1288 (Gorsuch, J.). Accordingly, we must

decline to recognize a new type of structural error that does not affect

a constitutional or even a substantial right.

The dissenting opinion similarly provides historical evidence for the

proposition that “dispensing” with the requirement of twelve jurors “may

be considered unconstitutional.” Post at 19 (quoting 2 Joseph Story,

Commentaries on the Constitution of the United States 588 (1858)).

Pet. App. 018a

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We agree with Johnson—and the government does not

dispute—that the district court violated Rule 23(b) when it proceeded

with an eleven-member jury before deliberation without a stipulation

from the parties. We review that violation for harmless error.

An “[e]rror is harmless if it is highly probable that it did not

contribute to the verdict.” United States v. Gomez, 617 F.3d 88, 95 (2d

Cir. 2010) (quoting United States v. Kaiser, 609 F.3d 556, 573 (2d Cir.

2010)). We have “repeatedly held that the strength of the

government’s case is the most critical factor in assessing whether

error was harmless.” United States v. McCallum, 584 F.3d 471, 478 (2d

Cir. 2009).

Johnson argues that the erroneous dismissal of the twelfth juror

“[i]n such a close case” cannot be considered harmless. Appellant’s

Br. 38. We disagree that the case was close. At trial, Johnson did not

deny that he posted and sent the threats nor did he dispute that the

other statutory predicates had been met, such as that the

communications were made in interstate commerce. Johnson’s only

defense was that he “was not seriously threatening to kill anyone”

and that “[n]o reasonable person would view Mr. Johnson’s

statements as reasonable threats, because they … were vague and

general.” App’x 454, 459. In our view, the evidence overwhelmingly

showed otherwise.

When it instructed the jury, the district court explained that the

government needed to prove that each statement was “made in such

circumstances that a reasonable person who heard or read the

statement would understand it as a serious expression of an intent to

inflict bodily injury or to kill.” Id. at 498. For Counts One and Four,

the government needed to show that Johnson “intended the

Pet. App. 019a

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communication to be received as a true threat or that he knew that the

statement would be viewed as a true threat by the person to whom it

was directed.” Id. at 500. For Counts Two and Three, the government

needed to show that Johnson delivered the threat “with the intent to

impede, intimidate, or interfere with the specified officials while they

were engaged in the performance of their official duties or with the

intent to retaliate against the officials on account of the performance

of their official duties.” Id. at 505. The evidence here met those

standards—and would not have allowed a reasonable juror to draw

the contrary conclusion. The jury saw Johnson’s videotaped and

written statements directly. The language was unequivocally

threatening: “I’m gonna look you in your fucking eye, and I’m gonna

take your fucking life,” id. at 576-77; “Joe Manchin will be executed,”

id. at 574; and “Laura Ingraham, you will be killed. I want you dead.

… I am going to personally kill you. … I’m going to kill you with my

bare hands,” id. 581-87. Given this direct evidence, the government’s

case was strong.

A reasonable jury could view these statements only as a series

of explicit death threats. Other than the statements themselves, there

was no evidence at trial that indicated Johnson’s state of mind or

intention at the time he transmitted the death threats. The assembled

evidence thus did not provide the jury with a basis on which it could

reasonably have found that Johnson’s intention, in posting the

threats, was not culpable. Cf. Neder, 527 U.S. at 17 (“[W]here a

reviewing court concludes beyond a reasonable doubt that the

omitted element was uncontested and supported by overwhelming

evidence, such that the jury verdict would have been the same absent

the error, the erroneous instruction is properly found to be

harmless.”).

Pet. App. 020a

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The conduct of the jury did not indicate that there was

significant disagreement over Counts One, Two, and Four. After

delivering a guilty verdict on those counts, the foreperson indicated

that the jurors viewed Counts One, Two, and Four differently than

Count Three, with respect to which she did “not believe [the jury] will

be able to reach a consensus.” App’x 545. 8 One additional juror

participating in the deliberation would not have affected the outcome

on the counts that resulted in conviction.

Moreover, Rule 23(b)(3) allowed the district court to proceed to

verdict with eleven jurors “even without a stipulation by the parties”

if it had dismissed the twelfth juror for good cause “[a]fter the jury

has retired to deliberate.” Fed. R. Crim. P. 23(b)(3). Thus, as noted

above, if the dismissal had occurred just a few hours later—after

closing arguments and the jury charge—there would have been no

violation of Rule 23(b) but there still would have been deliberation by

only eleven jurors. That difference in the timing of the dismissal did

not contribute to the verdict.

Because the violation of Rule 23(b) did not affect the outcome

of the trial, there is no reasonable doubt that the error was harmless.

We conclude that the erroneous decision to proceed with eleven

jurors does not warrant vacatur of the judgment of conviction.

Jurors may have seen Count Three differently because Kelley described

the video contemporaneously to Boebert as only a “possible threat,” and

Boebert did not take security precautions in response. App’x 118-20, 20810.

Pet. App. 021a

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Johnson next argues that the district court’s dismissals of

Alternate No. 2 and Juror No. 2 were not justified by “good cause”

and amounted to an abuse of discretion. We disagree.

Rule 23(b)(2)(B) allows the parties to stipulate that a jury of

fewer than twelve members may return a verdict “if the court finds it

necessary to excuse a juror for good cause after the trial begins.” Fed.

R. Crim. P. 23(b)(2)(B). Johnson argues that—when the district court

excused Alternate No. 2 and Juror No. 2 prior to the start of

deliberation—the district court violated Rule 23(b) not only because

it proceeded without a stipulation but also because “the court’s

dismissal of Juror 2 and Alternate 2 were unjustified by good cause,

and therefore abuses of discretion.” Appellant’s Br. 39.

We agree that the district court violated Rule 23(b) when it

decided—before the jury had retired to deliberate, and without a

stipulation from the parties—that it would permit eleven jurors to

return a verdict. As explained above, however, that error was

harmless. To the extent that the dismissals of Alternate No. 2 and

Juror No. 2 might be considered part of the violation of Rule 23(b), the

error would still be harmless for the same reasons.

But the district court did not dismiss Alternate No. 2 and Juror

No. 2 pursuant to a stipulation from the parties that “a jury of fewer

than 12 persons may return a verdict if the court finds it necessary to

excuse a juror for good cause after the trial begins.” Fed. R. Crim. P.

23(b)(2)(B). Accordingly, the dismissals are properly evaluated under

Rule 24(c)(1), which allows the district court “to replace any jurors

who are unable to perform or who are disqualified from performing

their duties.” Id. 24(c)(1). The “district courts have ‘broad discretion

under Rule 24(c) to replace a juror at any time before the jury retires

Pet. App. 022a

Case 22-1289, Document 58-1, 09/06/2024, 3633422, Page23 of 38

if there is reasonable cause to do so, and a reviewing court will only

find abuse of that discretion where there is bias or prejudice to the

defendant.’” United States v. Thompson, 528 F.3d 110, 121 (2d Cir. 2008)

(alteration omitted) (quoting United States v. Purdy, 144 F.3d 241, 247

(2d Cir. 1998)). “A juror may be discharged for misleading the court

or when facts are presented which convince the court that a juror’s

ability to perform his duty has become impaired.” United States v.

Floyd, 496 F.2d 982, 990 (2d Cir. 1974). 9

As we have explained, Johnson did not suffer prejudice from

the absence of a twelfth juror. And, in any event, we conclude that the

district court did not abuse its discretion in dismissing Alternate No. 2

and Juror No. 2. The three-hour delay that waiting for Alternate No. 2

would have occasioned provided reasonable cause for dismissal.

Alternate No. 2 informed the district court that she had been “up all

night” in the emergency room after her lips had swelled to “10 times”

the normal size, App’x 170, and that she would not be able to reach

the courthouse until “12:30 [pm] or so,” id. at 189. It was not

unreasonable for the district court to be concerned about the ability of

We note that the “reasonable cause” standard under Rule 24(c)(1) does

not differ significantly from the “good cause” standard under Rule 23(b),

which “embraces all kinds of problems—temporary as well as those of long

duration—that may befall a juror,” United States v. Reese, 33 F.3d 166, 173

(2d Cir. 1994), and which “establishes no bright-line test for determining

the length of juror unavailability that constitutes good cause for excusal,”

United States v. Paulino, 445 F.3d 211, 226 (2d Cir. 2006). “All that is needed

to satisfy a prudent exercise of discretion is to be certain the trial court had

sufficient information to make an informed decision.” Id. (quoting Reese,

33 F.3d at 173). “The trial judge has substantial discretion under Rule 23(b)

to remove a juror after deliberations have commenced where the judge has

determined that the juror’s ability to perform her duties has been

impaired,” including the ability “to deliberate as a fair and impartial juror.”

United States v. Barone, 114 F.3d 1284, 1307 (1st Cir. 1997).

Pet. App. 023a

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Alternate No. 2 to perform her duties and to want to avoid delay. We

have previously affirmed the dismissal of a juror who was ten

minutes late to court because “we certainly cannot say that the judge

abused his discretion by insisting on going ahead after 10 minutes.”

United States v. Domenech, 476 F.2d 1229, 1232 (2d Cir. 1973). We

cannot say it here either.

Johnson argues that the dismissal was an abuse of discretion

because it left only one alternate and because the district court was

simultaneously considering whether to dismiss Juror No. 2. But “no

law … requires, or even encourages, an appeals court to apply 20/20

hindsight to discretionary jury management decisions by district

judges.” Paulino, 445 F.3d at 226. We agree that the ultimate decision

to proceed to verdict with eleven jurors was erroneous. Yet that does

not mean that every prior decision which led to that point was

necessarily erroneous as well.

The district court also did not abuse its discretion in dismissing

Juror No. 2 after finding him to be “actively biased against the

government” because “he attributed what he regards as a false or

inaccurate accusation to the prosecution team.” App’x 400-01. There

is good cause—even under Rule 23(b)—to “dismiss jurors who,

although available and physically capable of serving, are nonetheless

found to be unable to perform their duties properly,” and for that

reason “Rule 23(b) dismissals have been upheld repeatedly in cases

where the trial court found that a juror was no longer capable of

rendering an impartial verdict.” United States v. Thomas, 116 F.3d 606,

613 (2d Cir. 1997). Accordingly, there was surely reasonable cause

under Rule 24(c)(1) to dismiss Juror No. 2 when his statements and

answers to questioning revealed “that the juror in question would not

be able to decide the matter objectively.” United States v. Torres, 128

F.3d 38, 47 (2d Cir. 1997).

Pet. App. 024a

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III

Johnson further argues that the admission of Gutfeld’s “Death

threat” email as an excited utterance violated the hearsay rule and the

Confrontation Clause. We again disagree.

The excited utterance exception to the rule against hearsay

allows the admission of an out-of-court “statement relating to a

startling event or condition, made while the declarant was under the

stress of excitement that it caused.” Fed. R. Evid. 803(2). “The

rationale for this hearsay exception is that the excitement of the event

limits the declarant’s capacity to fabricate a statement and thereby

offers some guarantee of its reliability.” United States v. Tocco, 135 F.3d

116, 127 (2d Cir. 1998).

An excited utterance is not synonymous with a present sense

impression, however. “[W]hile the hearsay exception for present

sense impressions focuses on contemporaneity as the guarantor of

reliability, and requires that the hearsay statement ‘describe or

explain’ the contemporaneous event or condition, the excited

utterance exception is based on the psychological impact of the event

itself, and permits admission of a broader range of hearsay

statements—i.e. those that ‘relate to’ the event.” United States v. Jones,

299 F.3d 103, 112 n.3 (2d Cir. 2002) (citation omitted) (quoting Fed. R.

Evid. 803(1), 803(2)). Therefore, “[a]n excited utterance need not be

contemporaneous with the startling event to be admissible under

Rule 803(2).” Tocco, 135 F.3d at 127 (approving the admission of an

excited utterance that occurred three hours after the startling event);

see also United States v. Scarpa, 913 F.2d 993, 1017 (2d. Cir. 1990)

(approving the admission of an excited utterance despite a “lapse of

five or six hours” between the utterance and the startling event).

Pet. App. 025a

Case 22-1289, Document 58-1, 09/06/2024, 3633422, Page26 of 38

In this case, Johnson argues that the email lacked the

“spontaneity” necessary to qualify as an excited utterance. Gutfeld

sent the email—devoid of excited punctuation or language indicating

that he was startled—several hours after Johnson sent him the

Instagram messages. According to Johnson, “[t]here was no

spontaneity in Gutfeld’s email characterizing the message as a ‘Death

threat.’” Appellant’s Br. 48.

Assuming that the email qualified as hearsay and required a

hearsay exception, we conclude that the district court did not abuse

its discretion by admitting the email as an excited utterance. The

district court reasonably concluded that Gutfeld was still under the

stress of the startling event when he wrote his email to corporate

security personnel. Johnson sent the Instagram message at 5:30 am,

when most people would be asleep—probably including Gutfeld,

who as the district court noted “does an evening show.” App’x 260.

The district court found that Gutfeld would have seen the messages

“materially later than 5 something in the morning,” close in time to

when he sent his email at 9:45 am. Id. That Gutfeld titled the email

“Death threat” and forwarded it to security personnel suggests he

took it seriously and was alarmed by it. That Gutfeld noted that the

sender was located in Manhattan does not indicate that Gutfeld was

no longer startled but more likely would have prompted greater

alarm.

Even if the email had not been admitted as an excited utterance,

however, its admission would have nonetheless been proper as

evidence of the declarant’s “then-existing state of mind … or

emotional, sensory or physical condition.” Fed. R. Evid. 803(3). As we

have previously explained, “when a declaration is admitted only to

prove a relevant state of mind, it does not appear to matter whether

admissibility is predicated on the declaration not being hearsay or

Pet. App. 026a

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under the Rule 803(3) hearsay exception for declaration of states of

mind because under either theory, a state of mind can be proved

circumstantially by statements which are not intended to assert the

truth of the fact being proved.” United States v. Quinones, 511 F.3d 289,

312 (2d. Cir. 2007) (alterations omitted) (quoting United States v.

Southland Corp., 760 F.2d 1366, 1376 (2d Cir. 1985)). The district court

instructed the jury that the email was “in evidence solely for [the jury]

to consider with respect to Mr. Gutfeld’s state of mind when he

received the Instagram post.” App’x 263. The email was therefore

evidence of the degree to which Gutfeld perceived the Instagram

messages to be a serious threat, not whether the messages in fact were

true threats or intended to be. It was not admitted for the truth of the

matter it asserted. Given the two bases on which the email was

properly admitted, the district court did not abuse its discretion by

admitting it.

“In all criminal prosecutions, the accused shall enjoy the

right … to be confronted with the witnesses against him.” U.S. Const.

amend. VI. By guaranteeing that an accused has the right of

confrontation, the Confrontation Clause of the Sixth Amendment

“bars the admission at trial of ‘testimonial statements’ of an absent

witness unless she is ‘unavailable to testify, and the defendant has

had a prior opportunity to cross-examine her.’” Smith v. Arizona, 144

S. Ct. 1785, 1791 (2024) (alteration omitted) (quoting Crawford v.

Washington, 541 U.S. 36, 53-54 (2004)).

“[T]wo limits” define the scope of this prohibition. Id. at 1792.

First, “the Clause confines itself to ‘testimonial statements,’” id. at

1792 (quoting Davis v. Washington, 547 U.S. 813, 823 (2006)), “or, put

differently, the Confrontation Clause simply has no application to

Pet. App. 027a

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nontestimonial statements,” United States v. Feliz, 467 F.3d 227, 231 (2d

Cir. 2006). The Supreme Court has identified a “core class of

‘testimonial’ statements” that includes “ex parte in-court testimony or

its functional equivalent”; “extrajudicial statements contained in

formalized testimonial materials, such as affidavits, depositions, prior

testimony, or confessions”; and “statements that were made under

circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial.”

Garlick v. Lee, 1 F.4th 122, 129 (2d Cir. 2021) (quoting Crawford, 541 U.S.

51-52). Testimonial statements also include “statements ‘made in the

course of police interrogation’” when “the primary purpose of the

interrogation was to establish or prove past events potentially

relevant to later criminal prosecution.” Smith, 144 S. Ct. at 1792

(alteration omitted) (quoting Davis, 547 U.S. at 822). But “statements

made to police ‘to meet an ongoing emergency’” that “were ‘not

procured with a primary purpose of creating an out-of-court

substitute for trial testimony’” are not testimonial. Id. (quoting

Michigan v. Bryant, 562 U.S. 344, 358-59 (2011)). “The reliability of a

testimonial statement may be determined only ‘by testing in the

crucible of cross-examination.’” Garlick, 1 F.4th at 129 (quoting

Crawford, 541 U.S. at 61).

Second, the Confrontation Clause “bars only the introduction

of hearsay—meaning, out-of-court statements offered ‘to prove the

truth of the matter asserted.’” Smith, 144 S. Ct. at 1792 (quoting

Anderson v. United States, 417 U.S. 211, 219 (1974)). “When a statement

is admitted for a reason unrelated to its truth … the Clause’s ‘role in

protecting the right to cross-examination’ is not implicated.” Id.

(quoting Tennessee v. Street, 471 U.S. 409, 414 (1985)).

Johnson argues that the admission of Gutfeld’s email violated

the Confrontation Clause because the email included a testimonial

Pet. App. 028a

Case 22-1289, Document 58-1, 09/06/2024, 3633422, Page29 of 38

statement made by a non-testifying declarant. According to Johnson,

when Gutfeld turned over the Instagram messages to Fox security

personnel, he would have expected that government prosecutors

would use the email as the functional equivalent of in-court

testimony. We disagree. The admission of the email did not violate

the Confrontation Clause because the email fell outside the “two

limits” the Supreme Court has identified: it was neither testimonial

nor hearsay. Smith, 144 S. Ct. at 1792.

First, the email was non-testimonial because it was not

generated as part of a police interrogation, investigation, or any other

process that aimed “to establish or prove past events potentially

relevant to later criminal prosecution.” Smith, 144 S. Ct. at 1792

(quoting Davis, 547 U.S. at 822). The email was even further removed

from the class of testimonial statements than “statements made to

police ‘to meet an ongoing emergency’” that “were ‘not procured

with a primary purpose of creating an out-of-court substitute for trial

testimony,’” id. (quoting Bryant, 562 U.S. at 358-59), because Gutfeld

did not even communicate with law enforcement. Rather, he alerted

his company’s internal personnel about a possible threat with the

purpose of addressing his immediate security concern rather than

establishing past events.

Second, as the district court instructed the jury, the email was

admitted “solely for [the jury] to consider with respect to

Mr. Gutfeld’s state of mind when he received the Instagram post.”

App’x 263. It was therefore admitted not for the truth of the matter

asserted but to establish “a state of mind,” which “can be proved

circumstantially by statements which are not intended to assert the

truth of the fact being proved.” Quinones, 511 F.3d at 312 (quoting

Southland Corp., 760 F.2d at 1376). Under these circumstances, the

Pet. App. 029a

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admission did not violate the Confrontation Clause. See Smith, 144

S. Ct. at 1792.

Johnson argues that the district court erred when it delivered

an uncalled witness charge, instructing the jury that the absence of

witnesses “should not affect your judgment one way or another.”

App’x 514. Johnson claims that the instruction “severely prejudiced

the defense” because it “undermined the valid defense argument that

the subjects’ failure to testify demonstrated that they did not take the

threats seriously.” Appellant’s Br. 53. We conclude that the

instruction was not erroneous.

When a particular witness is equally available to both sides but

neither party calls the witness, “the court has discretion to (1) give no

instruction and leave the entire subject to summations, (2) instruct the

jury that no unfavorable inference may be drawn against either side,

or (3) instruct the jury that an adverse inference may be drawn against

either or both sides.” United States v. Caccia, 122 F.3d 136, 139 (2d Cir.

1997) (citations omitted). In this case, the district court chose the

second option. One leading commentary explains that this “option,

charging that no inference should be drawn against either party, is

recommended” and that “courts are in general agreement concerning

the acceptability of … instructing the jury to draw no inferences

against either party.” 1 Modern Federal Jury Instructions—Criminal

¶ 6.04 (2024). Such an “instruction is preferred because it removes the

issue from consideration of the jury, avoiding the possibility that the

jury will draw inappropriate inferences from the absence of the

Pet. App. 030a

Case 22-1289, Document 58-1, 09/06/2024, 3633422, Page31 of 38

witness.” Id. 10 Overall, “[t]he decision whether to give a missing

witness instruction is within the discretion of the trial court.” United

States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994).

The district court did not abuse that discretion here. Johnson

argues that the instruction prevented the jury from considering the

defense’s “valid point that the failure of any of the subjects” of the

alleged threats “to testify showed that they did not take these videos

seriously.” Appellant’s Br. 54-55. But Johnson does not dispute that

“both sides had an equal opportunity or lack of opportunity to call”

the subjects “as witnesses.” App’x 514. Had Johnson wanted to show

that the subjects did not take the threats seriously, the defense could

have subpoenaed Gutfeld, Ingraham, Manchin, or Boebert. Having

chosen not to do so, the defense could not argue to the jury that the

government’s decision to make the same choice as the defense serves

as evidence of what the witnesses would have said.

Johnson points to a statement in the opinion in Caccia—

describing the prior opinion in Adeniji—to the effect that “we have

suggested that where a witness is equally available to both sides, a

missing witness charge is ‘inappropriate.’” Caccia, 122 F.3d at 139

(quoting Adeniji, 31 F.3d at 65); Appellant’s Br. 54. But neither Adeniji

nor Caccia help Johnson. In Adeniji, the defendant argued that “the

district court committed plain error in failing to give a missing witness

But see 2 John Henry Wigmore, Evidence § 288(c), at 208 (Chadbourn rev.

1979) (arguing that “the more logical view is that the failure to produce is

open to an inference against both parties, the particular strength of the

inference against either depending on the circumstances”). We have said

that when “the district court instructs the jury that the defendant is not

compelled to produce any witnesses, there may be some question as to

which of the two alternative charges would be the more logical.” United

States v. Bahna, 68 F.3d 19, 22 (2d Cir. 1995).

Pet. App. 031a

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charge regarding the unnamed agent who purportedly questioned

him about the jackets.” Adeniji, 31 F.3d at 65 (emphasis added). The

defendant thought the jury should have been instructed that an

adverse inference could be drawn against the government for failing

to call the agent because “[i]t is well settled that when a party has it

peculiarly within its power to produce witnesses and fails to do so,

the jury may infer that the testimony, if produced, would be

unfavorable to that party.” Id. (quoting United States v. Myerson, 18

F.3d 153, 158 (2d Cir. 1994)). We said that “[w]here the witness is

equally available to both parties, an instruction on this inference”—

that is, an adverse inference—“is inappropriate.” Id. Because “Adeniji

[had] not shown that the missing agent was unavailable to him,” he

could not establish that the district court erred in not affirmatively

authorizing an adverse inference against the government. Id.

Our decision in Caccia similarly concerned an “instruction

permitting an inference against either or both parties.” Caccia, 122 F.3d

at 139 (emphasis added). We said that such an instruction was

“especially inappropriate because of the circumstances countering the

equal availability of the witness.” Id. The missing witness had assisted

the government as an informant “and had expressed unwillingness

to speak to defense counsel before trial.” Id. We said that while “the

witness, having ended a relationship with the Government two years

previously, was not so peculiarly within the Government’s control as

to require the defendant’s requested instruction” authorizing an

adverse inference against the government, “the trial judge would

have been well advised either to refrain from giving an ‘equal

availability’ instruction or to instruct that no inference should be

drawn.” Id. We concluded that the district court’s instruction

permitting an inference against either party was not prejudicial, but

Pet. App. 032a

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our statement that a “no inference” instruction would have been

preferable undermines Johnson’s argument here.

In fact, in United States v. Dawkins, we specifically rejected a

challenge to a jury instruction almost identical to the jury instruction

in this case. 11 The defendants in Dawkins requested an adverse

inference instruction against the government because “one of the

Government’s key witnesses, undercover agent D’Angelo, was

unavailable to them.” Dawkins, 999 F.3d at 796. But the district court

explained that “if the defendants had wanted to call D’Angelo to

testify about his meetings with the defendants, or for some other

permissible purpose, they clearly could have done so.” Id. at 797. We

concluded that the case “falls within the situation we described in

United States v. Caccia: ‘where a witness is equally available to both

sides, but is not called by either side[,] the court has discretion’” to

Compare United States v. Dawkins, 999 F.3d 767, 796 (2d Cir. 2021) (“There

are several persons whose names you may have heard during the course of

the trial but did not appear to testify. I instruct you that each party has an

equal opportunity, or lack of opportunity, to call any of these witnesses.

Therefore, you should not draw any inferences or reach any conclusions as

to what they would have testified to had they been called. Their absence

should not affect your judgment in any way. You should, however,

remember my instruction that the law does not impose on a defendant in a

criminal case, the burden or duty of calling any witness or producing any

testimony.”), with App’x 514 (“Now, there are a number of people whose

names you’ve heard during the course of the trial who did not come here

and testify. I instruct you that both sides had an equal opportunity or lack

of opportunity to call those people as witnesses. Therefore, you should not

draw any inference or reach any conclusions as to what they would have

said had they been called. Their absence should not affect your judgment

one way or the other. You should, however, remember my instruction that

the defendant is not obliged in a criminal case to call any witnesses or

produce any evidence.”).

Pet. App. 033a

Case 22-1289, Document 58-1, 09/06/2024, 3633422, Page34 of 38

give one of the three possible instructions, and “[t]he district court’s

choice of the second option fell within its broad discretion.” Id.

(alteration omitted) (quoting Caccia, 122 F.3d at 139).

In this case, Johnson “clearly could have” called the subjects of

his threats to testify. Id. Having made the same choice as the

government not to do so, he cannot claim that an inference should

point only in one direction or fault the district court for seeking to

“avoid[] the possibility that the jury will draw inappropriate

inferences from the absence of the witnesses.” 1 Modern Federal Jury

Instructions—Criminal, supra, ¶ 6.04. Under these circumstances, the

district court was “well advised … to instruct that no inference should

be drawn.” Caccia, 122 F.3d at 139.

Finally, Johnson argues that the district court erred in

admitting the testimony of Kelley regarding the seriousness of

Johnson’s threats. According to Johnson, the testimony was

impermissible expert opinion under Federal Rule of Evidence 701 and

usurped the role of the jury. Appellant’s Br. 56-58. We disagree.

“We review a district court’s evidentiary rulings under ‘a

deferential abuse of discretion standard’ and will disturb its rulings

‘only where the decision to admit or exclude evidence was manifestly

erroneous,’” United States v. Skelos, 988 F.3d 645, 662 (2d Cir. 2021)

(quoting United States v. Litvak, 808 F.3d 160, 179 (2d Cir. 2015)), and

“only if [the] error affects a ‘substantial right’” in that it “had a

‘substantial and injurious effect or influence’ on the jury’s verdict,”

United States v. Garcia, 413 F.3d 201, 210 (2d Cir. 2005) (quoting United

States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003)).

Rule 701 provides that “[i]f a witness is not testifying as an

expert, testimony in the form of an opinion is limited” to an opinion

Pet. App. 034a

Case 22-1289, Document 58-1, 09/06/2024, 3633422, Page35 of 38

that is “(a) rationally based on the witness’s perception,” “(b) helpful

to clearly understanding the witness’s testimony or to determining a

fact in issue,” and “(c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Fed. R. Evid.

701. Because such an opinion is not expert but “lay opinion,” it must

reflect “reasoning processes familiar to the average person in

everyday life.” Garcia, 413 F.3d at 215. The “helpfulness requirement

is principally designed to provide assurance against the admission of

opinions which would merely tell the jury what result to reach.”

United States v. Flores, 945 F.3d 687, 706 (2d Cir. 2019) (internal

quotation marks and alteration omitted).

Johnson suggests that Kelley’s testimony about the nature of

the threats amounted to impermissible expert testimony because his

“reasoning process was not that of an average person in everyday

life” but reflected “specialized knowledge.” United States v. Cabrera,

13 F.4th 140, 150 (2d Cir. 2021); Appellant’s Br. 62-64. Johnson also

contends that Kelley’s testimony “usurped the function of the jury to

decide what to infer” from the evidence. United States v. Grinage, 390

F.3d 746, 750 (2d Cir. 2004); Appellant’s Br. 64-66.

Kelley testified about the events that followed the NYPD

alerting him to the threatening messages and videos that Johnson

posted. Kelley testified that he contacted Representative Boebert’s

chief of staff at 11:30 pm on February 4, 2021, because of “the type of

threat” he witnessed in the videos. App’x 114. Kelley thought that the

language “was concerning enough” that he “felt that it was necessary

to make sure that the office and the member of Congress was properly

notified.” Id. When asked to explain how he formulated that opinion,

he testified that he was concerned about three elements of the threats:

(1) that Johnson had said “I’m going to kill you,” phrasing that was

more “intens[e]” than “we are going to kill you” or “I hope you die,”

Pet. App. 035a

Case 22-1289, Document 58-1, 09/06/2024, 3633422, Page36 of 38

id. at 116-17; (2) that Johnson repeated the threat “over and over

again” throughout the video, id. at 117; and (3) that Johnson had

“tagged” Boebert’s account in the video, id.

With regard to the threats against Manchin, Kelley testified that

he ordered directed patrols at Manchin’s home because of “the

concerning nature and threatening aspect of [Johnson’s] comments.”

Id. at 201. On redirect, Kelley testified that he called Manchin’s chief

of staff because he was concerned by the “intensity of the language,”

the “repetition of the statements,” and the content of the caption in

the post. Id. at 244-45.

We conclude that the district court did not err in admitting

Kelley’s testimony. First, Kelley’s “specialized knowledge, or the fact

that he was chosen to carry out an investigation because of this

knowledge, does not render his testimony ‘expert’ as long as it was

based on his ‘investigation and reflected his investigatory findings

and conclusions, and was not rooted exclusively in his expertise.’”

United States v. Rigas, 490 F.3d 208, 224 (2d Cir. 2007) (quoting Bank of

China, N.Y. Branch v. NBM LLC, 359 F.3d 171, 181 (2d Cir. 2004)).

Kelley’s testimony was properly based on his investigation rather

than exclusively on his expertise. Second, because Kelley’s testimony

“resulted from a process of reasoning familiar in everyday life, it was

permissible lay opinion testimony under Rule 701.” Rigas, 490 F.3d at

224 (internal quotation marks and alteration omitted). Kelley’s

testimony that he was concerned by such things as the “intensity of

the language” and the “repetition of the statements,” App’x 244-45,

hardly reflects the sort of “opaque, intuitive process grounded in

some kind of specialized knowledge” that characterizes expert

testimony, Cabrera, 13 F.4th at 150.

Pet. App. 036a

Case 22-1289, Document 58-1, 09/06/2024, 3633422, Page37 of 38

In Cabrera, by contrast, the testifying agent reached an inference

“well beyond” what a lay person could have inferred. Id. In particular,

the agent “inferred from Cabrera’s driving that Cabrera must be one

of those experienced drug-dealers who had mastered the technique

of evading law enforcement.” Id. We said that “[a] lay person [would

be] unfamiliar with law enforcement surveillance techniques and

incapable of inferring that a suspect’s driving maneuvers evince

(1) experience with evading those techniques and, consequently,

(2) experience dealing drugs.” Id. To the contrary, a lay “juror might

as easily ascribe those maneuvers to watching the movies, or to a

paranoia born of inexperience.” Id. Kelley’s testimony was not “based

on specialized experience that the agent had accumulated from other

cases” nor did it involve “a specialized reasoning process not readily

understandable to the average juror.” United States v. Cuti, 720 F.3d

453, 460 (2d Cir. 2013). Because Kelley’s “reasoning was evident to the

jury,” it was not impermissible expert testimony. Id.

Additionally, we have said that it may be appropriate to

introduce testimony “to explain the investigation, or to show an

agent’s state of mind so that the jury will understand the reasons for

the agent’s subsequent actions,” and that such testimony may

“constitute appropriate rebuttal to initiatives launched by the

defendant.” United States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994). In this

case, the defense argued to the jury in its opening statement that Fox

Corporation did not respond in the same way to all threats but singled

out Johnson for his political views. The defense “implore[d]” the jury

“to ponder why that is.” App’x 99. “Why does Fox News, why did

they choose to pursue Mr. Johnson, but not others?” Id. The argument

suggested that law enforcement had an improper motivation in

targeting Johnson, given “the constant barrage of criticism and threats

from the public,” id. at 99-100, including from Fox Corporation, which

Pet. App. 037a

Case 22-1289, Document 58-1, 09/06/2024, 3633422, Page38 of 38

alerted law enforcement in the first place. This argument focused on

the motivation of law enforcement in responding to Johnson’s threats.

After the defense put that motivation at issue, it was proper for the

district court to allow the government to elicit testimony from Kelley

about why he responded to Johnson’s threats the way that he did.

Johnson nevertheless contends that Kelley’s testimony

“‘usurped the function of the jury to decide what to infer from the

content’ of [Johnson’s] statements and simply told the jurors what to

infer.” Appellant’s Br. 65 (quoting Grinage, 390 F.3d at 750). In Grinage,

a law enforcement agent “interpreted both the calls that the jury heard

and the calls that the jury did not hear,” applying specialized

expertise not only to decode the slang used in the calls but also to infer

from the calls the extent to which the participants must have been

involved in a drug conspiracy. Grinage, 390 F.3d at 750. Kelley’s

testimony, by contrast, “reflected his investigatory findings and

conclusions” and was otherwise based on “a process of reasoning

familiar to everyday life.” Rigas, 490 F.3d at 224. His testimony did

not “provid[e] an overall conclusion of criminal conduct” that

usurped the jury’s function. United States v. Zhong, 26 F.4th 536, 556

(2d Cir. 2022) (quoting Dukagjini, 326 F.3d at 54).

CONCLUSION

For the foregoing reasons, we affirm the judgment of the

district court.

Pet. App. 038a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page1 of 26

CHIN, Circuit Judge, dissenting:

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

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

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

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

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

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

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

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

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

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

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

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

Rule 23(b)(2) provides that"[a]t any time before the verdict, the parties may, with

the court's approval, stipulate in writing" to a jury of "fewer than 12 persons." The

parties may stipulate to fewer than twelve persons outright or to fewer than twelve

persons "if the court finds it necessary to excuse a juror for good cause after the trial

begins." Fed. R. Crim. P. 23(b)(2)(A), (B). Rule 23(b)(3) provides that "[a]fter the jury

has retired to deliberate, the court may permit a jury of 11 persons to return a verdict,

even without a stipulation by the parties, if the court finds good cause to excuse a

juror." The provision permitting an eleven-person jury was added when Rule 23 was

amended in 1983. See generally United States v. Stratton, 779 F.2d 820, 831 (2d Cir. 1985).

Pet. App. 039a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page2 of 26

because the error is structural. Alternatively, Johnson argues that, even

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

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

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

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

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

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

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

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

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

part of the fundamental framework within which a federal criminal trial

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

hundreds of years.

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

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

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

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

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

Pet. App. 040a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page3 of 26

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

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

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

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

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

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

Accordingly, I respectfully dissent. 2

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

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

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

Congresswoman Lauren Boebert each appeared on the screen. He made

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

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

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

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

In affirming, the majority rejects Johnson's other challenges to his conviction. See

Majority Op. at 2. Because, in my view, the violation of Rule 23(b) alone requires

vacatur, I do not address the other grounds raised by Johnson on appeal.

Pet. App. 041a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page4 of 26

through Instagram, stating that Gutfeld "will be killed." App'x at 565. For this

conduct, the Superseding Indictment charged Johnson with two counts of

transmitting threatening communications in interstate commerce in violation of

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

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

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

and Three charged Johnson with making threats against Senator Manchin and

Representative Boebert, respectively.

All four counts of the Superseding Indictment required the

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

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

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

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

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

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

dispute at trial.

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

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

Pet. App. 042a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page5 of 26

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

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

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

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

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

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

because of Presidents' Day Weekend.

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

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

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

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

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

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

24." Id. 3

The defense did not present any further evidence and rested.

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

The district court was mistaken in citing Rule 24, and the lawyers did not correct

the error. Rule 24 covers voir dire, peremptory challenges, and alternate jurors, and it

does not address the number of jurors required to render a verdict. See Fed. R. Crim. P.

24.

Pet. App. 043a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page6 of 26

member jury began its deliberations at 3:09 p.m. The jury was sent home at 5:25

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pet. App. 044a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page7 of 26

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

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

Accordingly, although the trial spanned five days, the presentation

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

full days.

II.

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

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

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

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

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

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

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

automatically require reversal of a conviction, the Court has applied harmlesserror analysis to a wide range of errors and has recognized that most

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

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

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

Pet. App. 045a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page8 of 26

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

other evidence presented in order to determine whether its admission was

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pet. App. 046a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page9 of 26

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

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

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

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

structural." Id. at 296.

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

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

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

Pursuant to Rule 23(b), Johnson "was entitled to be tried by a twelveperson jury, and the district court possessed no discretion -- prior to

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

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

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

requiring automatic reversal of Johnson's convictions.

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

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

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

Pet. App. 047a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page10 of 26

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

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

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

have viewed the evidence presented against Johnson and participated in

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

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

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

impossible to know what different choices the rejected counsel would have

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

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

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

universe").

Because an appellate court cannot know what effect a twelfth juror

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

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

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

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

Pet. App. 048a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page11 of 26

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pet. App. 049a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page12 of 26

deliberations it is virtually impossible for a defendant to demonstrate actual

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

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

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

original).

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

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

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

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

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

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

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

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

to transpire. 4

The majority writes that "[h]ad the district court waited a few hours -- and

dismissed the twelfth juror for cause after the jury had 'retired to deliberate' -- the

district court would not have violated Rule 23(b)." Majority Op. at 17 (citing Fed. R.

Crim. P. 23(b)(3)). In that scenario, the district court would have indeed followed Rule

23(b). But the point is that the district court did not follow the Rule and erred when it

dismissed the twelfth juror prior to deliberations without Johnson's consent.

Accordingly, what the majority casts as a "small change in timing" was, in my view, an

obvious error with a prejudicial effect on Johnson.

Pet. App. 050a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page13 of 26

Moreover, decisions of our sister circuits have held that proceeding

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

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

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

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

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

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

verdict."). Other circuits have considered other kinds of Rule 23(b) violations -such as proceeding with a jury of less than twelve pursuant to an oral stipulation

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

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

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

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

(collecting cases).

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

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

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

Pet. App. 051a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page14 of 26

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

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

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

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

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

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

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

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

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

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

structural.

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

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

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

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

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

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

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

Pet. App. 052a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page15 of 26

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

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

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

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

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

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

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

Moreover, Williams involved state criminal proceedings and a

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

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

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

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

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

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

a twelve-person jury in federal criminal practice.

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

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

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

Pet. App. 053a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page16 of 26

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pet. App. 054a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page17 of 26

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

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

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

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

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

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

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

right for other purposes.

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

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

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

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

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

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

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

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

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

Pet. App. 055a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page18 of 26

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

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

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

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

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

shall have been committed.").

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

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

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

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

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

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

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

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

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

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

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

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

Pet. App. 056a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page19 of 26

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pet. App. 057a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page20 of 26

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

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

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

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

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

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

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

twelve, except in certain limited and prescribed circumstances.

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

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

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

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

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

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

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

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

amendments observed as follows:

If the trial has been brief and not much would be lost by retrial, the court

might well conclude that the unusual step of allowing a jury verdict

Pet. App. 058a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page21 of 26

by less than 12 jurors absent stipulation should not be taken. On the

other hand, if the trial has been protracted the court is much more

likely to opt for continuing with the remaining 11 jurors.

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

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

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

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

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

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

retried.

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

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

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

of prejudice.

III.

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

23(b) did not constitute structural error and therefore was subject to harmlesserror review, I would nonetheless vacate Johnson's conviction because the

Pet. App. 059a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page22 of 26

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

harmless.

Pursuant to Federal Rule of Criminal Procedure 52(a), harmlesserror review considers whether the error has "affect[ed] substantial rights." See

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

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

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

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

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

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

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

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

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

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

Kotteakos, 328 U.S. at 765.

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

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

Pet. App. 060a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page23 of 26

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

Four." Id. at 20. I disagree.

While it is impossible to know with any certainty what actually

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

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

similar in nature and the government presented nearly identical evidence on

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

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

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

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

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

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

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

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

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

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

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

about a deadlock.

Pet. App. 061a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page24 of 26

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

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

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

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

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

Representative Boebert, and Ingraham appearing on Fox News and his

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

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

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

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

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

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

number.

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

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

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

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

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

Pet. App. 062a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page25 of 26

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

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

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

their common knowledge and life experience in drawing inferences and reaching

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

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

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

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

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

jury surely could have concluded that no reasonable person would understand

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

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

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

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

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

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

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

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

Pet. App. 063a

Case 22-1289, Document 59, 09/06/2024, 3633425, Page26 of 26

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

error was harmless.").

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

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

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

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

IV.

Johnson's convictions should be vacated because the district court

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

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

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

Pet. App. 064a

Case 22-1289, Document 87, 07/14/2025, 3645201, Page1 of 3

22-1289

United States v. Johnson

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the

City of New York, on the 14th day of July, two thousand twenty-five.

Present:

DEBRA ANN LIVINGSTON,

Chief Judge,

RAYMOND J. LOHIER, JR.,

RICHARD J. SULLIVAN,

JOSEPH F. BIANCO,

MICHAEL H. PARK,

WILLIAM J. NARDINI,

STEVEN J. MENASHI,

EUNICE C. LEE,

BETH ROBINSON,

MYRNA PÉREZ,

ALISON J. NATHAN,

SARAH A. L. MERRIAM,

MARIA A. KAHN,

Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

Appellee,

22-1289

RICKEY JOHNSON, AKA SEALED

Pet. App. 065a

Case 22-1289, Document 87, 07/14/2025, 3645201, Page2 of 3

DEFENDANT 1, AKA NEIL DAWN

DEFARREN,

Defendant-Appellant.

_____________________________________

For Appellee:

KYLE A. WIRSHBA, Assistant United States

Attorney (Patrick R. Moroney, Stephen J.

Ritchin, Assistant United States Attorneys,

on the brief), for Damian Williams, United

States Attorney for the Southern District of

New York, New York, NY.

For Defendant-Appellant:

COLLEEN P. CASSIDY, Federal Defenders of

New York, New York, NY.

Following disposition of this appeal on September 6, 2024, an active judge

of the Court requested a poll on whether to rehear the case en banc. A poll having

been conducted and there being no majority favoring en banc review, the petition

for rehearing en banc is hereby DENIED.

Raymond J. Lohier, Jr., Circuit Judge, joined by Joseph F. Bianco, Circuit

Judge, and joined as to Parts I and II by Maria A. Kahn, Circuit Judge, concurs by

opinion in the denial of rehearing en banc, and is joined as to Part I by Eunice C.

Lee, Beth Robinson, Myrna Pérez, and Alison J. Nathan, Circuit Judges.

Steven J. Menashi, Circuit Judge, joined by Debra A. Livingston, Chief Judge,

Richard J. Sullivan, and Michael H. Park, Circuit Judges, concurs by opinion in the

denial of rehearing en banc.

Sarah A. L. Merriam, Circuit Judge, joined by Eunice C. Lee, Beth Robinson,

Myrna Pérez, and Alison J. Nathan, Circuit Judges, dissents by opinion from the

denial of rehearing en banc.

Pet. App. 066a

Case 22-1289, Document 87, 07/14/2025, 3645201, Page3 of 3

Denny Chin, Circuit Judge, filed a statement with respect to the denial of

rehearing en banc.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

Pet. App. 067a

Case 22-1289, Document 88, 07/14/2025, 3645202, Page1 of 6

22-1289

United States v. Johnson

LOHIER, Circuit Judge, joined by BIANCO, Circuit Judge, and joined as to Parts I and

II by KAHN, Circuit Judge, concurring in the denial of rehearing in banc, and

joined as to Part I by LEE, ROBINSON, PÉREZ, and NATHAN, Circuit Judges:

We are not all in agreement as to whether in banc review of this matter is

warranted. But it is not uncommon in a collaborative court for members of the

court to join various portions of other colleagues’ opinions. Here, eight members

of this Court — Judges Bianco, Lee, Robinson, Pérez, Nathan, Merriam, Kahn,

and I — agree that the question of whether a structural error must implicate a

defendant’s constitutional rights remains an open one in this Circuit because the

panel opinion’s statements bearing on a hypothetical structural error that is nonconstitutional are clearly dicta. Accord Merriam, J., Dissenting Op. at 6.

That said, I agree that we should deny rehearing in banc in this unusual

case. This case squarely raises one basic issue: whether a violation of Federal

Rule of Criminal Procedure 23(b), which requires a twelve-person jury in a

federal criminal trial, affects a defendant’s constitutional or substantial rights.

This question, in my view, has already been answered by our Court and the

Pet. App. 068a

Case 22-1289, Document 88, 07/14/2025, 3645202, Page2 of 6

22-1289

United States v. Johnson

Supreme Court. In Williams v. Florida, 399 U.S. 78 (1970), the Supreme Court held

that the Sixth Amendment right to a jury trial does not mandate precisely twelve

jurors. Following Williams, we held that the denial of a twelve-person jury does

not “impair the ‘substantial rights’ of a criminal defendant.” See United States v.

Stratton, 779 F.2d 820, 833–34 (2d Cir. 1985).

Good arguments may well exist for revisiting Williams (and, by extension,

our decision in Stratton). See Khorrami v. Arizona, 143 S. Ct. 22, 23–27 (2022)

(Gorsuch, J., dissenting from denial of certiorari); Cunningham v. Florida, 144 S.

Ct. 1287, 1287–88 (2024) (Gorsuch, J., dissenting from denial of certiorari); United

States v. Johnson, 117 F.4th 28, 60–61 (2d Cir. 2024) (Chin, J., dissenting). But we

“should . . . leav[e] to [the Supreme] Court the prerogative of overruling its own

decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484

(1989). So we remain bound by Williams unless and until the Supreme Court tells

us otherwise. For now, in light of Williams and Stratton, it appears that the denial

of the right to a twelve-person jury does not qualify as a structural error that

“defies analysis by harmless error standards.” See Weaver v. Massachusetts, 582

U.S. 286, 295 (2017) (cleaned up).

Pet. App. 069a

Case 22-1289, Document 88, 07/14/2025, 3645202, Page3 of 6

22-1289

United States v. Johnson

III

The panel opinion suggests a second question lurking in the background:

whether structural errors must implicate a constitutional right. It says the

answer is yes, as a matter of first impression in our Circuit and contrary to the

conclusion reached by one of our sister Circuits. See United States v. Curbelo, 343

F.3d 273, 280, 285 (4th Cir. 2003). But the panel opinion reasons that the error in

this case is not structural because it did not affect even a substantial right.

Therefore, the opinion’s statements bearing on a hypothetical structural error

that is non-constitutional are clearly dicta. In other words, the panel opinion’s

assertion is decidedly not a holding of this Court.

Let me explain why. In holding that the Rule 23(b) violation here is subject

to harmless error analysis, the panel opinion concludes that the existence of

controlling precedent establishing that “the right to a twelve-member jury is

neither a constitutional nor even a substantial right . . . mean[s] that a violation of

Rule 23(b)’s twelve-member requirement cannot amount to a structural error.”

Johnson, 117 F.4th at 40 (emphasis added). The opinion’s discussion elsewhere

that a structural error must affect a defendant’s constitutional rights — as

opposed to “substantial rights” — is thus “unnecessary to the disposition of the

Pet. App. 070a

Case 22-1289, Document 88, 07/14/2025, 3645202, Page4 of 6

22-1289

United States v. Johnson

case before it.” 1 Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 508 (2d

Cir. 1996); see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66–67 (1996) (“We

adhere . . . not to mere obiter dicta, but rather to . . . those portions of [an] opinion

necessary to [its] result . . . .”); Cotto v. Herbert, 331 F.3d 217, 250 n.20 (2d Cir.

2003) (“We have not hesitated to describe our prior statements as dicta when

they were not necessary to the holdings of the decisions in which they were

made.”). See generally Pierre N. Leval, Judging Under the Constitution: Dicta About

Dicta, 81 N.Y.U. L. Rev. 1249 (2006).

Of course, the “defining feature of a structural error . . . is that it affects the

framework within which the trial proceeds, rather than being simply an error in

the trial process itself.” United States v. Mendonca, 88 F.4th 144, 170–71 (2d Cir.

2023) (Lohier, J., concurring) (quoting Weaver, 582 U.S. at 295 (cleaned up)). That

framing suggests that the error need not affect a constitutional right. Cf. Weaver,

The panel opinion’s reasoning as to why the error here did not affect even a substantial

right is irrelevant to this inquiry. Because its disposition rests on that conclusion, its

additional observations on the nature of structural error are unnecessary to the result

and therefore dicta. Especially where, as here, a significant majority of active judges on

our Court agree on this basic point, a simple contrary pronouncement, see Menashi, J.,

Concurring Op. at 3, “cannot transmute dictum into” a holding. See United States v.

Rubin, 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring) (“A judge’s power to

bind is limited to the issue that is before him; he cannot transmute dictum into decision

by waving a wand and uttering the word ‘hold.’”).

Pet. App. 071a

Case 22-1289, Document 88, 07/14/2025, 3645202, Page5 of 6

22-1289

United States v. Johnson

582 U.S. at 295 (explaining that “[t]he precise reason why a particular error is not

amenable to [harmless error] analysis — and thus the precise reason why the

Court has deemed it structural — varies in a significant way from error to error,”

however those errors are labeled). Moreover, this Court has elsewhere signaled

that, in an appropriate case, a non-constitutional error involving a trial’s

framework might be found to be structural. See Shabazz v. United States, 923 F.3d

82, 84 (2d Cir. 2019) (“Categories of error found by the Supreme Court to be

‘structural’ ordinarily relate to ‘certain basic, constitutional guarantees that should

define the framework of any criminal trial.’” (emphasis added) (quoting Weaver,

582 U.S. at 295)). The panel opinion’s assertion to the contrary is, as Judge Chin

suggested in dissent, dicta built upon dicta. See Johnson, 117 F.4th at 59 (Chin, J.,

dissenting) (observing that “[t]he Supreme Court has never held that an error is

structural only if it affects a defendant’s constitutional rights”; it has only

“occasionally suggest[ed] in dicta that structural errors implicate constitutional

rights”).

For these reasons, as stated in Part I, the question of whether a structural

error must implicate a defendant’s constitutional rights remains an open one in

this Circuit. On that point, as also stated in Part I, we agree with our colleagues

Pet. App. 072a

Case 22-1289, Document 88, 07/14/2025, 3645202, Page6 of 6

22-1289

United States v. Johnson

who have dissented from the denial of rehearing in banc. See, e.g., Merriam, J.,

Dissenting Op. at 3 (“[W]hether a non-constitutional error can be structural is, at

a minimum, an open question.”). Whether a non-constitutional error can count

as a structural error is a question not squarely presented in this case, and any

attempt by our in banc Court to resolve the issue in a vacuum would itself count

as dicta. As the panel majority will not dispute, the only holding in its opinion is

that the rare trial defect at issue here is not structural because it impairs “neither

a constitutional [right]” under Williams “nor even a substantial right.” Johnson,

117 F.4th at 40.

Because the opinion’s holding is limited to the very narrow issue of

whether a Rule 23(b) violation affects a defendant’s constitutional or substantial

rights, I concur in the denial of rehearing in banc.

Pet. App. 073a

Case 22-1289, Document 89, 07/14/2025, 3645203, Page1 of 11

22-1289

United States v. Johnson

MENASHI, Circuit Judge, joined by LIVINGSTON, Chief Judge, and

SULLIVAN and PARK, Circuit Judges, concurring in the denial of

rehearing en banc:

The court has voted against rehearing this case en banc. I concur

in its order because Johnson was correctly decided.

In Johnson, the court reached three holdings relevant here. First,

the court held that the right to a twelve-person jury is not a

constitutional right. See United States v. Johnson, 117 F.4th 28, 40 (2d

Cir. 2024). The Supreme Court has decided that “the fact that the jury

at common law was composed of precisely 12 is a historical accident,

unnecessary to effect the purposes of the jury system and wholly

without significance ‘except to mystics.’” Williams v. Florida, 399 U.S.

78, 102 (1970) (quoting Duncan v. Louisiana, 391 U.S. 145, 182 (1968)

(Harlan, J., dissenting)). Under current precedent, therefore, “there is

no constitutional right to a twelve-member jury.” Johnson, 117 F.4th at

40.

Second, the court held that a structural error must involve the

violation of a constitutional right. See id. at 40-41. The Federal Rules

of Criminal Procedure provide that “[a]ny error, defect, irregularity,

or variance that does not affect substantial rights must be

disregarded.” Fed. R. Crim. P. 52(a). “Rule 52 is, in every pertinent

respect, as binding as any statute duly enacted by Congress, and

federal courts have no more discretion to disregard the Rule’s

mandate than they do to disregard constitutional or statutory

provisions.” Bank of Nova Scotia v. United States, 487 U.S. 250, 255

(1988). Indeed, “a federal court may not invoke supervisory power to

circumvent the harmless-error inquiry.” Id. at 254. The Supreme

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Court has explained that we may deviate from the harmless-error

standard only for “a limited class of fundamental constitutional errors

that defy analysis by harmless error standards.” Neder v. United States,

527 U.S. 1, 7 (1999) (internal quotation marks omitted). “The purpose

of the structural error doctrine is to ensure insistence on certain basic,

constitutional guarantees that should define the framework of any

criminal trial.” Weaver v. Massachusetts, 582 U.S. 286, 294-95 (2017). A

right conferred only by the Federal Rules of Criminal Procedure

cannot create an exception to Rule 52(a). Accordingly, a structural

error must implicate a constitutional right that exists apart from the

rules.

Third, the court held that Johnson’s conviction by eleven jurors

was a harmless error. See Johnson, 117 F.4th at 43-44. Because (1) the

Constitution does not require a twelve-person jury and (2) structural

errors must be constitutional errors, Johnson’s conviction by eleven

jurors is subject to harmless-error review. See id. at 41. For the three

counts on which he was convicted, the evidence against Johnson was

overwhelming. “The conduct of the jury did not indicate that there

was significant disagreement” over those counts. Id. at 44.

Accordingly, while the district court erred in violation of Rule 23(b)

when it dismissed the twelfth juror before the jury started

deliberating, the error was harmless. See id.

Now that the en banc court has decided not to reconsider

Johnson, the dissent attempts to achieve such reconsideration by

labeling one of its key holdings as dicta that can be ignored in future

cases. The dissent claims that Johnson only “suggests that structural

error must be anchored in constitutional error.” Post at 5-6; see also ante

at 3.

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That is not what Johnson says. “I encourage readers to go to the

source, rather than rely on dissents, to understand what the Court

holds.” Bondi v. VanDerStok, 145 S. Ct. 857, 877 (2025) (Sotomayor, J.,

concurring). The Johnson opinion does not “suggest” but squarely

holds that the structural error doctrine is limited to a specific type of

constitutional error. It is difficult for a reader of the opinion to miss

this holding. See Johnson, 117 F.4th at 40 (“We depart from this

harmless-error analysis only for a limited class of fundamental

constitutional errors that defy analysis by harmless error standards.”)

(internal quotation marks omitted); id. at 41 (“The Supreme Court has

emphasized that the purpose of the structural error doctrine is to

ensure insistence on certain basic, constitutional guarantees that should

define the framework of any criminal trial.”) (internal quotation

marks omitted); id. (“[Structural] error requires automatic reversal

and is not subject to harmless error analysis because it involves a

deprivation of a constitutional protection so basic that in its absence,

a criminal trial cannot reliably serve its function.”) (internal quotation

marks omitted); id. (“Generally speaking structural errors must, at a

minimum, be constitutional errors.”) (alteration omitted) (quoting

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

at 42 (“[T]he Supreme Court and the appellate courts have repeatedly

made clear that structural errors necessarily must affect a defendant’s

constitutional rights.”) (internal quotation marks omitted); id. at 42

n.4 (“[S]tructural errors include only a limited class of fundamental

constitutional errors.”) (internal quotation marks omitted); id. at 43

(“[W]e must decline to recognize a new type of structural error that

does not affect a constitutional or even a substantial right.”).

The dissent describes this holding as “unnecessary to the

majority’s decision” and as “therefore dicta.” Post at 6 n.1. That is

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wrong. A dictum is “a comment on how the court would decide some

other, different case” and “does not explain why the court’s judgment

goes in favor of the winner.” Pierre N. Leval, Judging Under the

Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1256 (2006). A

holding, by contrast, announces and explains the judgment of the

court. See id. at 1256-57 & n.20. The holding includes the explanation

as well as the result. For that reason, “it is not only the result but also

those portions of the opinion necessary to that result by which we are

bound.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996); see also

Cap. Currency Exch., N.V. v. Nat’l Westminster Bank PLC, 155 F.3d 603,

608 (2d Cir. 1998). We must “adhere … to the well-established

rationale upon which the Court based the results of its earlier

decisions.” Seminole Tribe, 517 U.S. at 66-67 (emphasis added).

The text and logic of Johnson require that structural errors be

limited to specific constitutional errors. The opinion held that “the

erroneous decision to proceed with eleven jurors does not warrant

vacatur” because “the error was harmless.” Johnson, 117 F.4th at 44.

The court reached that result based on the rule that only violations of

basic constitutional rights can generate structural errors:

In the absence of the deprivation of a constitutional right

so fundamental that the trial cannot be trusted to

perform its function, the Supreme Court has repeatedly

made clear that we must adhere to the general rule that

a constitutional error does not automatically require

reversal of a conviction. If the general rule applies to all

constitutional errors beyond a select few at the

constitutional bedrock, it necessarily applies to nonconstitutional errors that are even further removed from

that foundation. Because the right to twelve rather than

eleven jurors that Rule 23(b) provides does not implicate

Pet. App. 077a

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the Constitution—at its bedrock or otherwise—we

review a violation of that rule for harmless error.

Johnson, 117 F.4th at 41 (internal quotation marks, alterations, and

citations omitted).

The court did not suggest in passing that structural errors must

be constitutional but directly endorsed that proposition in “a portion

of the opinion necessary to the result.” CompassCare v. Hochul, 125

F.4th 49, 59 (2d Cir. 2025) (internal quotation marks and alterations

omitted). The proposition was central to the reasoning and necessary

to the outcome of the case. The issue “was before the court; was

argued before the court; and was passed upon by the court. It was not

dictum.” Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 508

(2d Cir. 1996) (internal quotation marks, alteration, and citations

omitted).

The dissent claims that the court in Johnson did not need to

address whether structural errors must be constitutional errors

because the court decided that the lack of a twelve-person jury “‘did

not implicate the fundamental fairness of the trial procedure’ and

therefore did not constitute structural error.” Post at 6 n.1. That is a

tendentious

misreading

the

opinion.

Johnson

considered

fundamental fairness only after concluding that structural errors

must be constitutional. See Johnson, 117 F.4th at 41-42. And the opinion

made clear that the reason why the lack of a twelve-person jury does

not implicate fundamental fairness is that it does not implicate a

constitutional right: “[T]he Supreme Court has told us that convening

a jury ‘composed of precisely 12’ is ‘unnecessary to effect the

purposes of the jury system’ because the number twelve is ‘wholly

without significance.’” Id. at 42 (quoting Williams, 399 U.S. at 102).

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The court did not adopt an independent ground for concluding

that harmless-error analysis applied. The court had already

concluded that harmless-error analysis applied because a structural

error must be constitutional. See id. at 40-41. It then elaborated on that

reasoning to answer Johnson’s objection “that a violation of Rule 23(b)

should be considered a structural error because it ‘affects the very

framework within which the trial proceeds, rather than simply the

trial process itself.’” Id. at 42 (internal quotation marks and alteration

omitted) (quoting Appellant’s Br. 36). It did so by reference to the

Supreme Court’s holding that the Constitution does not guarantee a

twelve-member jury.

Even if the court had adopted an alternative ground for its

holding that harmless-error analysis applied, that still would not

justify dismissing its holding about constitutional errors as dicta.

“[W]here a decision rests on two or more grounds, none can be

relegated to the category of obiter dictum.” Woods v. Interstate Realty

Co., 337 U.S. 535, 537 (1949); see also Omega SA v. 375 Canal, LLC, 984

F.3d 244, 251 n.4 (2d Cir. 2021). “[E]ach is the judgment of the court,

and of equal validity with the other.” Union Pac. R.R. Co. v. Mason City

& Fort Dodge R.R. Co., 199 U.S. 160, 166 (1905). The Johnson court held

that only the violation of a basic constitutional right may qualify as a

structural error. But even if the court had separately held, without

regard to constitutional concerns, that the lack of a twelve-person jury

does not implicate fundamental fairness, both holdings would

equally represent a binding holding of the court.

The separate concurrence makes a similar error. It claims that

the holding of Johnson was “unnecessary” because “controlling

precedent” established that a twelve-person jury is not a “substantial

Pet. App. 079a

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right.” Ante at 3. We observed in Johnson that we have previously held

that the right to a twelve-member jury is not “substantial” for

purposes of the Ex Post Facto Clause. See Johnson, 117 F.4th at 40

(quoting United States v. Stratton, 779 F.2d 820, 834 (2d Cir. 1985)). That

prior precedent did not “control” the outcome in Johnson. Whether a

right is “substantial” under the Ex Post Facto Clause does not dictate

whether its violation qualifies as a structural error. In fact, we have

never explained what it even means for a right to be considered

“substantial” for ex post facto purposes. “[T]he meaning of

‘substantial’ in this context is not clear.” Stratton, 779 F.2d at 833. The

only reason we identified for concluding that the twelve-member jury

does not qualify as a substantial right under the Ex Post Facto Clause

is that it lacks constitutional status: “neither the Sixth nor Fourteenth

Amendment guarantees a jury of twelve.” Id. at 834.

In Johnson, we explained all of this. We said that the reason for

our previous holding that the twelve-member jury is not a substantial

right under the Ex Post Facto Clause is that the Constitution does not

guarantee it:

We therefore have held that the retroactive application of

amended Rule 23(b), allowing conviction by eleven

jurors, did not violate the Ex Post Facto Clause.

“Whatever disadvantage to the defendant may occur

from reducing the jury size from twelve to eleven is of

insufficient proportion to give him a constitutional right to

a jury of twelve, and it does not affect the substantial

rights of the defendant for Ex Post Facto purposes.”

Johnson, 117 F.4th at 40 (emphasis added) (alteration omitted)

(quoting Stratton, 779 F.2d at 835). Thus, by citing this prior precedent,

the Johnson court was not adopting an alternative holding. Rather, the

court explained that (1) we have previously held the twelve-member

Pet. App. 080a

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jury right not to be “substantial” because it is not constitutional, and

(2) that approach supports our decision to hold that the right is not

“structural” for the same reason. We said that “[t]hese prior

precedents—holding that the right to a twelve-member jury is neither

a constitutional nor even a substantial right—mean that a violation of

Rule 23(b)’s twelve-member requirement cannot amount to a

structural error” because “[w]e depart from [the generally applicable]

harmless-error analysis only for a limited class of fundamental

constitutional errors that defy analysis by ‘harmless error’ standards.”

Id. (internal quotation marks omitted).

Even if the prior decision in Stratton could have supported the

result in Johnson for a reason other than the constitutional rationale on

which Johnson relied, that would not diminish the precedential weight

of Johnson’s holding. “Nor is it relevant for present purposes [that]

these holdings might instead have been rested on other available

grounds.” Burnham v. Superior Ct. of Cal., 495 U.S. 604, 613 n.2 (1990).

The reasoning of a panel opinion binds a later panel even if the later

panel can imagine a narrower rationale for the earlier decision. “Even

assuming [a prior] court was not required to decide the way it did,

once it did so, its decision became binding precedent.” S&R Co. of

Kingston v. Latona Trucking, Inc., 159 F.3d 80, 83 (2d Cir. 1998).

“A court’s stated and, on its view, necessary basis for deciding

does not become dictum because a critic would have decided on

another basis.” Henry J. Friendly, In Praise of Erie—and of the New

Federal Common Law, 39 N.Y.U. L. Rev. 383, 385-86 (1964). Indeed, the

assertion that “the court’s reasoning is not considered part of the

holding” but that the “holding consists of nothing more than the facts

of the case, together with the result,” is “nothing more than a cynical,

rhetorical device for overruling, or escaping, the precedent of a prior

opinion without forthrightly acknowledging doing so.” Leval, supra,

Pet. App. 081a

Case 22-1289, Document 89, 07/14/2025, 3645203, Page9 of 11

at 1256 n.20. Johnson held that non-constitutional errors are

necessarily subject to harmless-error review. Even if other judges

might have written the opinion differently, that conclusion was the

“rationale upon which the [c]ourt based the results” it reached.

Seminole Tribe, 517 U.S. at 66-67.

This order denying rehearing en banc features the spectacle of

judges simultaneously concurring and dissenting in the same case

with respect to the same result. Normally, a concurrence or a dissent

provides reasons supporting or opposing the disposition of the court.

Here, judges who disagree about the result focus on whether Johnson’s

holding can be dismissed as dicta. But the opinions do not even agree

on the reasoning for that specific point. The dissent insists that Johnson

held only that the lack of a twelve-person jury does “not implicate the

fundamental fairness of the trial procedure.” Post at 6 n.1. That is

wrong. See supra Part II.A. The concurrence insists that Johnson was

dictated by prior precedent about the Ex Post Facto Clause. See ante at

3. That is also wrong, but for different reasons. See supra Part II.B.

Under any view of the holding-dicta distinction—but

especially under the view that the separate opinions endorse—

anything said here about the precedential status of Johnson is itself

dicta. The court has decided not to exercise its discretion under

Rule 40(c) to order an en banc rehearing of Johnson. To reach that

result, it is not necessary to decide whether the holdings of Johnson

may be dismissed as dicta in a future case. And certainly the views of

those judges who voted in favor of en banc rehearing do not explain

the decision of the court to deny it. Among the judges in the majority

who voted to deny rehearing, four join this concurrence and three join

the other concurrence in full or in part.

Pet. App. 082a

Case 22-1289, Document 89, 07/14/2025, 3645203, Page10 of 11

In any event, it was the decision of the Johnson panel that

resolved the appeal in this case. “The active judges declined to revisit

that decision en banc. The panel decision is therefore the [c]ourt’s

decision. Other judges may have views on the matter, but the case is

not before them, and what they may say about it has as much force of

law as if those views were published in a letter to the editor of their

favorite local newspaper.” United States v. Stewart, 597 F.3d 514, 519

(2d Cir. 2010) (Pooler, J., concurring in the denial of rehearing en banc)

(emphasis added).

The decision of a panel of this court “is binding unless and until

it is overruled by the [c]ourt en banc or by the Supreme Court.” Jones

v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995). The conclusion of Johnson

that structural errors must be constitutional errors was necessary to

the judgment and therefore a holding of the court. It bears

emphasizing that—contrary to the suggestions of the other

opinions—this holding of Johnson reflects the majority view among

the appellate courts. 1 Because the active judges of the Second Circuit

have declined to reconsider that holding, it remains binding.

See United States v. Mojica-Baez, 229 F.3d 292, 309 (1st Cir. 2000) (“Certain

categories of error interfere with such basic and fundamental constitutional

protections that they go to the structure of our criminal law system. …

Other errors have been designated as structural in order to vindicate

compelling constitutional policies.”); United States v. Nappi, 243 F.3d 758,

770 (3d Cir. 2001) (rejecting a claim of structural error because “it is clear

that the error that occurred here, without more, is not of constitutional

dimension”); United States v. Ross, 72 F.4th 40, 47 (4th Cir. 2023) (“To qualify

as structural, an error must not only implicate a defendant’s constitutional

rights but also affect the very framework in which a trial proceeds.”)

(internal quotation marks omitted); In re Halprin, 788 F. App’x 941, 944 (5th

Cir. 2019) (“[S]tructural error is a type of constitutional error.”); United

States v. Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) (“[G]enerally

speaking structural errors must, at a minimum, be constitutional errors.”).

Pet. App. 083a

Case 22-1289, Document 89, 07/14/2025, 3645203, Page11 of 11

In Johnson, this court held that (1) there is no constitutional right

to a twelve-member jury, (2) a structural error must involve the denial

of a constitutional right, and (3) the violation of Rule 23(b) must

therefore be reviewed for harmlessness. Because those holdings are

correct and should remain the law of the circuit, I concur in the denial

of rehearing en banc.

But see Green v. United States, 262 F.3d 715, 718 (8th Cir. 2001); McGriff v.

Dep’t of Corr., 338 F.3d 1231, 1235 (11th Cir. 2003); United States v. Essex, 734

F.2d 832, 845 (D.C. Cir. 1984). As Johnson noted, a split decision of the Fourth

Circuit previously indicated support for the minority position, see Johnson,

117 F.4th at 41-42 (discussing United States v. Curbelo, 343 F.3d 273 (4th Cir.

2003)), but the Fourth Circuit has since adopted the majority view, see Ross,

72 F.4th at 47.

Pet. App. 084a

Case 22-1289, Document 90, 07/14/2025, 3645204, Page1 of 12

22-1289

United States v. Johnson

MERRIAM, Circuit Judge, joined by LEE, ROBINSON, PÉREZ, and NATHAN, Circuit

Judges, dissenting from the denial of rehearing en banc:

Some trial errors can never be harmless. Some errors so infect the conduct

of a trial, or the determination of a verdict, that they require a clean slate, and a

new trial, to protect the defendant’s essential rights. Such errors are structural –

that is, they alter and undermine the very structure of a criminal trial.

This case presents the question of whether a violation of Federal Rule of

Criminal Procedure 23(b) that reduces a criminal jury to eleven – before

deliberations begin and over the objection of the defendant – constitutes a

structural error that may not be considered harmless. The majority panel

opinion “agree[d] with Johnson . . . that the district court violated Rule 23(b)

when it proceeded with an eleven-member jury before deliberation without a

stipulation from the parties.” Majority Op. at 19. But the majority opinion

concluded, over Judge Chin’s dissent, that such an error is not structural, and

went on to find the error harmless.

Judge Chin’s dissent from the panel opinion thoroughly and persuasively

articulates how the majority opinion gets the structural error analysis wrong. We

believe that we should have convened en banc to find that the District Court’s

Pet. App. 085a

Case 22-1289, Document 90, 07/14/2025, 3645204, Page2 of 12

error was not subject to harmless error review, and to remand for a new trial.

And, particularly in light of dicta in the majority opinion suggesting that an error

must implicate a constitutional right to be structural, we believe we should have

taken this opportunity to state clearly that a trial error may be structural – and

therefore not subject to harmless error review – even if it does not implicate a

constitutional right. The District Court erroneously denied Johnson a jury of

twelve. The right to a jury of twelve is firmly entrenched in our history, and the

improper dismissal of even one juror impacts the outcome of a trial in systemic

ways that cannot be accurately predicted in advance or assessed in retrospect.

Such an error is structural, and that is a matter of exceptional importance that

this Court should address. See Fed. R. App. P. 40(b)(2)(d). We therefore dissent

from the denial of rehearing en banc.

* * *

“[T]he defining feature of a structural error is that it affects the framework

within which the trial proceeds, rather than being simply an error in the trial

process itself. For the same reason, a structural error defies analysis by harmless

error standards.” Weaver v. Massachusetts, 582 U.S. 286, 295 (2017) (citations and

quotation marks omitted); see also Greer v. United States, 593 U.S. 503, 513 (2021).

Pet. App. 086a

Case 22-1289, Document 90, 07/14/2025, 3645204, Page3 of 12

The Supreme Court has identified three broad categories of errors that have been

held to be structural: (1) errors that impact a right “not designed to protect the

defendant from erroneous conviction but [that] instead protects some other

interest,” such as “the defendant’s right to conduct his own defense”; (2) errors

whose effects are “simply too hard to measure,” such as “when a defendant is

denied the right to select his or her own attorney”; and (3) errors that “always

result[] in fundamental unfairness,” such as a failure “to give a reasonable-doubt

instruction.” Weaver, 582 U.S. at 295-96. “These categories are not rigid.” Id. at

296. And “one point is critical: An error can count as structural even if the error

does not lead to fundamental unfairness in every case.” Id.

The Supreme Court could easily have stated, in this discussion, that any

such error must also be constitutional in nature. It did not. Indeed, neither the

Supreme Court nor this Court has ever stated that only constitutional errors can

be considered structural. To the contrary, Supreme Court precedent supports the

proposition that whether a non-constitutional error can be structural is, at a

minimum, an open question.

In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), the

defendants were convicted of criminal contempt for violating a permanent

Pet. App. 087a

Case 22-1289, Document 90, 07/14/2025, 3645204, Page4 of 12

injunction prohibiting infringement of a manufacturer’s trademark. They

challenged their convictions on the basis that the court-appointed special

prosecutor conducting the criminal contempt prosecution was also the

manufacturer’s counsel. Although the Supreme Court upheld the district court’s

authority to appoint a special counsel to prosecute the case, it concluded that the

attorney representing the private beneficiary of the injunction could not serve in

that capacity. See id. at 801-02. A plurality of the Supreme Court found that

harmless error review did not apply, citing Delaware v. Van Arsdall, 475 U.S. 673,

681 (1986), for the proposition that “some errors are so fundamental and

pervasive that they require reversal without regard to the facts or circumstances

of the particular case.” Id. at 809-10 (citation and quotation marks omitted). It

explained that “[a]n error is fundamental if it undermines confidence in the

integrity of the criminal proceeding.” Id. at 810. Comparing the error there with

errors such as racial discrimination in grand jury selection, exposing a petit jury

to publicity unfavorable to the defendant, or adjudication by a conflicted judicial

officer, the plurality concluded: “A concern for actual prejudice in such

circumstances misses the point, for what is at stake is the public perception of the

integrity of our criminal justice system.” Id. at 811. Significantly, the majority of

Pet. App. 088a

Case 22-1289, Document 90, 07/14/2025, 3645204, Page5 of 12

the Supreme Court did not identify the error as constitutional, instead grounding

its holding in the supervisory authority of courts to enforce their own orders. See

id. at 808-09. Thus, Young offers an example of an error that was not viewed as a

constitutional error, but that a plurality of the Supreme Court nonetheless treated

as a structural error that defies harmless error review.

Our own precedent, too, suggests that structural errors need not have

constitutional dimensions. In United States v. Li, for example, we held that

although “a defendant’s right to a sentencing allocution is a matter of criminal

procedure and not a constitutional right, it is nonetheless considered an ‘absolute

right’ in the federal courts,” such that “resentencing is typically appropriate if the

sentencing court has not complied with the allocution requirement.” 115 F.3d

125, 132-33 (2d Cir. 1997) (citations omitted). Likewise, we have observed that

“[c]ategories of error found by the Supreme Court to be ‘structural’ ordinarily

relate to ‘certain basic, constitutional guarantees that should define the

framework of any criminal trial.’” Shabazz v. United States, 923 F.3d 82, 84 (2d

Cir. 2019) (quoting Weaver, 582 U.S. at 295) (emphasis added).

In spite of this background, and although no such rule is necessary to its

holding, the majority opinion suggests that structural error must be anchored in

Pet. App. 089a

Case 22-1289, Document 90, 07/14/2025, 3645204, Page6 of 12

constitutional error. See Majority Op. at 16 (citing a dissenting opinion of another

Circuit for the proposition that “the Supreme Court and the appellate courts

‘have repeatedly made clear that structural errors necessarily must affect a

defendant’s constitutional rights’” (quoting United States v. Curbelo, 343 F.3d 273,

289 (4th Cir. 2003) (Wilkins, J., dissenting))). 1 As the opinion of Judge Lohier

concurring in the denial of en banc review points out, the panel opinion’s

“statements bearing on a hypothetical structural error that is non-constitutional

are clearly dicta.” Lohier, J., Concurring Op. at 1. 2 On this point, we agree with

Judge Lohier’s opinion: “[T]he question of whether a structural error must

implicate a defendant’s constitutional rights remains an open one in this Circuit.”

Id. at 5.

The majority opinion rested its decision on its conclusion that the Rule 23(b)

violation here, denying the defendant a jury of twelve, “did not implicate the

fundamental fairness of the trial procedure” and therefore did not constitute

structural error. Majority Op. at 17. As such, the discussion in the opinion of

whether an error must be constitutional to be structural was unnecessary to the

majority’s decision and is therefore dicta.

Four active judges — including only one member of the original panel — have

expressed the view that the statements are not dicta. Eight active judges have

expressed the view that they are. Those views are based on each judge’s

individual reading of the original panel opinion. None has any more weight

than any other.

Pet. App. 090a

Case 22-1289, Document 90, 07/14/2025, 3645204, Page7 of 12

The majority panel opinion cites Neder v. United States, 527 U.S. 1 (1999), for

the following proposition: “We depart from . . . harmless-error analysis only for

‘a limited class of fundamental constitutional errors that defy analysis by

“harmless error” standards.’” Majority Op. at 14 (quoting 527 U.S. at 7). But

Neder does not, in fact, limit the scope or concept of structural error in the way

the majority opinion suggests.

Neder observes that certain “fundamental constitutional errors” can affect

substantial rights and defy harmless error review; it does not instruct that only

such errors can do so: “[W]e have recognized a limited class of fundamental

constitutional errors that defy analysis by ‘harmless error’ standards. Errors of

this type are so intrinsically harmful as to require automatic reversal (i.e., ‘affect

substantial rights’) without regard to their effect on the outcome.” 527 U.S. at 7

(citations and quotation marks omitted). The Supreme Court explained that such

cases

contain a defect affecting the framework within which the trial

proceeds, rather than simply an error in the trial process itself. Such

errors infect the entire trial process and necessarily render a trial

fundamentally unfair. Put another way, these errors deprive

defendants of basic protections without which a criminal trial cannot

reliably serve its function as a vehicle for determination of guilt or

innocence and no criminal punishment may be regarded as

fundamentally fair.

Pet. App. 091a

Case 22-1289, Document 90, 07/14/2025, 3645204, Page8 of 12

Id. at 8-9 (citations and quotation marks omitted).

Again, as was true in Young, the Supreme Court in Neder could have, but

did not, expressly limit structural errors to those impacting a defendant’s

constitutional rights. It again declined to do so in Weaver. Rather, the Supreme

Court’s decisions direct us to inquire whether the district court’s error affects a

defendant’s substantial rights, rendering the trial or the verdict fundamentally

unfair, and undermining confidence in the process – not whether those rights are

fundamentally constitutional in nature. Cf. Fed. R. Crim. P. 52(a) (allowing

harmless error review where the error “does not affect substantial rights”

(emphasis added)).

The right to a jury of twelve is properly viewed as a substantial right. This

Court has never addressed the question of whether a Rule 23(b) violation affects

substantial rights in cases – like Johnson’s – where a twelfth juror was excused

prior to deliberations and without the defendant’s consent. Other Courts of

Appeals have recognized that Rule 23(b) violations require reversal. As Judge

Chin’s dissent points out, some have expressly found the error to be structural.

See Dissenting Op. at 13 (citing Curbelo, 343 F.3d at 285; United States v. Taylor, 498

F.2d 390 (6th Cir. 1974); United States v. Essex, 734 F.2d 832 (D.C. Cir. 1984)).

Pet. App. 092a

Case 22-1289, Document 90, 07/14/2025, 3645204, Page9 of 12

Others have remanded for new trials based on the Rule 23(b) error, without any

express discussion of harmless or structural error. See, e.g., United States v.

Tabacca, 924 F.2d 906 (9th Cir. 1991) (remanding for a new trial because there was

not good cause for dismissal of the twelfth juror); United States v. Araujo, 62 F.3d

930 (7th Cir. 1995) (same). The majority opinion conflicts with these decisions of

our sister circuits, which both undermines its persuasiveness and further

supports the rationale for rehearing this matter en banc. See Fed. R. App. P.

40(b)(2)(c).

The majority opinion also departs from the holdings of this and the other

Courts of Appeals in declaring that “[o]ne additional juror participating in the

deliberation would not have affected the outcome on the counts that resulted in

conviction.” Majority Op. at 21. There is no factual basis for that statement; it

represents nothing more than “appellate speculation about a hypothetical

[twelve-member] jury’s action.” Sullivan v. Louisiana, 508 U.S. 275, 280 (1993). 3

In fact, it is evident from the record that in this case, one juror very well might

have changed things, because the jury appears to have had difficulty reaching a

verdict. Over the course of its deliberations, the jury submitted multiple notes to

the District Court, including one that read: “At this time we have not reached a

conclusion on one of the counts. We do not believe we will reach a consensus.

How do we proceed[?]” App’x at 540. It deliberated for more than two days,

after hearing only one day of evidence, including continued deliberations after

receiving guidance from the District Court. It may even be that the verdict was a

Pet. App. 093a

Case 22-1289, Document 90, 07/14/2025, 3645204, Page10 of 12

We simply cannot know how that one juror might have changed the outcome,

because we do not know what is in the jurors’ minds; we do not know the

dynamics of their deliberations. “As a general rule, no one – including the judge

presiding at a trial – has a ‘right to know’ how a jury, or any individual juror, has

deliberated or how a decision was reached by a jury or juror.” United States v.

Thomas, 116 F.3d 606, 618 (2d Cir. 1997). As Judge Chin’s dissenting opinion

observes: “Because an appellate court cannot know what effect a twelfth juror

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

based, inherently, on pure speculation.” Dissenting Op. at 10; accord Curbelo, 343

F.3d at 281. The addition or removal of even a single juror might increase the

chances of conviction – or of acquittal – and quite obviously increases the

chances of a lone holdout resulting in a mistrial. 4

compromise arrived at by a hopelessly hung jury. We simply have no idea; that

is why the concept of harmless error is so misplaced in this context.

As fictionally depicted in the film 12 Angry Men nearly 70 years ago, the effect

one juror can h

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