18‐3430 In re: United States of America

United States Court of Appeals for the Second Circuit

AUGUST TERM 2018

Docket No. 18‐3430

IN RE: UNITED STATES OF AMERICA,

UNITED STATES OF AMERICA,

Petitioner,

v.

YEHUDI MANZANO,

Respondent.

ARGUED: FEBRUARY 13, 2019

DECIDED: DECEMBER 18, 2019

Before: PARKER, CHIN, AND SULLIVAN, Circuit Judges.

On the eve of trial, the United States District Court for the District of Connecticut (Underhill, Chief Judge) ruled that Respondent – who is charged with, inter alia, production of child pornography, an offense punishable by a mandatory minimum term of fifteen years’ imprisonment – could argue jury nullification at trial. The district court also reserved decision on whether evidence of sentencing consequences would be admissible. The government now petitions for a writ of mandamus directing the district court to preclude defense counsel from arguing nullification and to exclude any evidence of sentencing consequences. We hold that the conditions for mandamus relief are satisfied with respect to the district court’s nullification ruling, but not with respect to the admissibility of evidence of sentencing consequences. Thus, we grant in part and deny in part the petition. Judge Parker concurs in part and dissents in part in a separate opinion. SANDRA S. GLOVER, Assistant United States Attorney (Sarah P. Karwan, Neeraj Patel, Assistant United States Attorneys, on the brief), for John H. Durham, United States Attorney for the District of Connecticut, New Haven, CT, for Petitioner. NORMAN A. PATTIS, Pattis & Smith, LLC, New Haven, CT, for Respondent. JOHN GLEESON (Pooja A. Boisture, Nathan S. Richards, on the brief), Debevoise & Plimpton LLP, New York, NY, for Amicus Curiae The Honorable Stefan R. Underhill. Clark M. Neily III, Jay R. Schweikert, Cato Institute, Washington, D.C., counsel of record, Mary Price, FAMM Foundation, Washington, D.C., Peter Goldberger, Ardmore, PA, Joel B. Rudin, National Association of Criminal Defense Lawyers, New York, NY, for Amici Curiae Cato Institute, FAMM Foundation, and National Association of Criminal Defense Lawyers.

2 Timothy Lynch, The Fully Informed Jury Association, Helena, MT, for Amicus Curiae The Fully Informed Jury Association. RICHARD J. SULLIVAN, Circuit Judge:

Respondent Yehudi Manzano stands charged with production of child

pornography, an offense punishable by a mandatory minimum term of fifteen

years’ imprisonment, and transportation of child pornography, which is

punishable by a mandatory minimum term of five years’ imprisonment. Shortly

before trial, he filed motions requesting permission to argue for jury nullification

– in essence, that the jury should render a verdict not in accordance with the law

– and to present evidence regarding the sentencing consequences of a conviction

in this case. On the eve of trial, the district court (Underhill, Chief Judge) granted

Manzano’s request to argue jury nullification, but reserved decision on the

admissibility of evidence regarding the sentencing consequences of a conviction.

The government now seeks a writ of mandamus directing the district court

to (1) preclude defense counsel from arguing jury nullification, and (2) exclude any

evidence of sentencing consequences at trial. Applying settled law in this circuit,

we hold that the government has a clear and indisputable right to a writ directing

the district court to deny defense counsel’s motion for leave to argue jury

3 nullification, and that the other conditions for mandamus relief are satisfied. We

further hold that, at this time, the government does not possess a clear and

indisputable right to a writ directing the district court to exclude any evidence of

sentencing consequences.

Accordingly, we grant in part and deny in part the government’s petition.

I. BACKGROUND

A. Facts1

In October 2016, law enforcement officers in Connecticut received

information that a 15‐year‐old girl, M.M., had been in a sexual relationship with

Yehudi Manzano, the 31‐one‐year‐old landlord of the building where she lived.

During the ensuing state investigation, officers searched Manzano’s cell phone

pursuant to a warrant and discovered a video of M.M. and Manzano engaged in

sexually explicit conduct.

M.M. knew that Manzano was recording the video at the time, and Manzano

did not threaten her or force her to engage in the sexual conduct. Nonetheless,

M.M. was 15 years old when the video was recorded and therefore was incapable

1The following facts have not yet been admitted into evidence in the district court, but the parties do not dispute them for the limited purpose of our review of the government’s petition. 4 of consenting to sexual conduct as a matter of law. See Conn. Gen. Stat. § 53a‐

71(a)(1). Although Manzano did not distribute the video, he uploaded it, using

internet servers located outside of Connecticut, to his personal Google Photos

folder.

B. District Court Proceedings

In May 2018, a grand jury sitting in Connecticut returned an indictment

charging Manzano with one count of production of child pornography, in

violation of

(a), and one count of transportation of child

pornography, in violation of 18 U.S.C. § 2252A(a)(1). The production count is

punishable by a mandatory minimum term of fifteen years’ imprisonment,

(e), while the transportation count is punishable by a mandatory

minimum term of five years’ imprisonment,

§ 2252A(b)(1). The district court

set a trial date of October 29, 2018.

On October 1, 2018, Manzano filed a pretrial “Motion to Permit Counsel to

Argue Jury Nullification” in which he sought “permission to make the jury aware

of the penalty, and to argue that the [g]overnment’s application of the law to the

particular facts of this case is an obscene miscarriage of justice.” United States v.

Manzano, No. 18‐cr‐95 (SRU) (D. Conn. Oct. 1, 2018), ECF No. (“Doc. No.”) 30. In

5 support of these requests, Manzano argued that “[b]ut for [M.M.’s] age, the contact

was consensual,” and “[b]ut for the fact that his telephone was seized pursuant to

a warrant, no one would ever have had access to the film.” Id. Manzano

acknowledged that the government “may well be able to prove the elements of the

[production] offense,” but he insisted that “the conduct at issue here, while

perhaps not innocent, [was] in no way so sinister as to warrant” the fifteen‐year

mandatory minimum penalty. Id.

On October 11, 2018, the government filed its opposition to Manzano’s

motion and requested that defense counsel “be precluded, through a jury address,

witness examination, or offer of evidence, from informing the jury about the

sentencing consequences or suggesting to the jury that they may acquit if they find

the [g]overnment’s prosecution or the sentencing consequences are unjust.” Doc.

No. 36 at 7. The government renewed that request in its motions in limine, filed

October 23, 2018, which sought “to preclude evidence and/or argument of the

propriety of the [g]overnment’s prosecution.” Doc. No. 45 at 9–10.

On October 25, 2018, with trial set to begin in four days, the district court

held a pretrial conference at which it reserved decision on the government’s

motion. The next day, Manzano requested that the court rule on his still pending

6 “request to argue jury nullification and to present evidence of the sentencing

consequences of a conviction to the jury.” Doc. No. 48 at 10.

On October 29, 2018, the day the trial was scheduled to begin, the district

court held another pretrial conference at which it granted Manzano’s motion to

permit counsel to argue jury nullification, while reserving decision on the

admissibility of evidence related to sentencing consequences. In explaining its

ruling, the district court began by observing that “[t]his is a shocking case . . . that

calls for jury nullification.”2 Doc. No. 60 at 34. The court then ruled:

[T]he law precludes me from charging the jury, the law precludes me from encouraging the jury, and I don’t intend to do that. But if evidence comes in about the length of sentence, or if [defense counsel] chooses to argue, I do not feel that I can preclude that. I don’t feel I’m required to preclude that. And I think justice requires that I permit that. So it’s not going to come from me, but I think justice cannot be done here if the jury is not informed, perhaps by [defense counsel], that that’s the consequence here.

2 More fully, the district court explained: This is a shocking case. This is a case that calls for jury nullification. . . . I am absolutely stunned that this case, with a 15‐year mandatory minimum, has been brought by the government. . . . I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct or the lack or seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I’m not sure. Doc. No. 60 at 34.

7 Id. at 34–35. The district court memorialized its ruling in a minute entry stating

that “[Manzano’s] motion is granted to the extent it seeks permission to argue for

jury nullification.” Doc. No. 58.

The government immediately filed an emergency motion to adjourn the trial

while it sought permission from the Solicitor General’s Office to file a petition for

writ of mandamus in this court. At an emergency motion hearing held the same

day, the district court granted the government’s motion, dismissed the jury, and

adjourned the trial pending our resolution of the government’s petition. With

respect to its jury nullification ruling, the district court also reiterated: “I simply

am allowing [defense counsel] to argue as he chooses to argue. There is no doubt

that juries have the power to nullify, and [defense counsel] intends to argue that

they should.” Doc. No. 62 at 4–5.

This petition for a writ of mandamus followed.

II. DISCUSSION

The common‐law writ of mandamus is codified in the All Writs Act, which

provides that federal courts “may issue all writs necessary or appropriate in aid of

their respective jurisdictions and agreeable to the usages and principles of law.”

(a); Cheney v. U.S. Dist. Court,

(2004). “The

8 traditional use of the writ in aid of appellate jurisdiction both at common law and

in the federal courts has been to confine [the court against which mandamus is

sought] to a lawful exercise of its prescribed jurisdiction.” Cheney,

(alteration in original) (quoting Roche v. Evaporated Milk Ass’n,

(1943)). Although courts have not subscribed to a “technical definition of

‘jurisdiction,’” it is common ground that mandamus may lie only in “exceptional

circumstances amounting to a judicial usurpation of power or a clear abuse of

discretion.”

(internal quotation marks and citations omitted).

“The writ is, of course, to be used sparingly.” Stein v. KPMG, LLP,

(2d Cir. 2007). Thus, three demanding conditions must be satisfied before

the writ may issue: (1) the petitioner must “have no other adequate means to

attain the relief [it] desires;” (2) the petitioner must satisfy “the burden of showing

that [its] right to issuance of the writ is clear and indisputable;” and (3) the issuing

court “must be satisfied that the writ is appropriate under the circumstances.”

Cheney, 542 U.S. at 380–81 (internal quotation marks and citations omitted).

Here, the government petitions for a writ of mandamus directing the district

court to (1) preclude defense counsel from arguing jury nullification at trial, and

9 (2) exclude any evidence regarding the applicable mandatory minimum sentences.

Applying the framework set forth in Cheney, we consider each claim in turn.

A. Jury Nullification

1. Other Adequate Means to Obtain the Relief Sought

To satisfy the first Cheney condition, a petitioner must show that it “ha[s] no

other adequate means to attain the relief [it] desires.” Id. at 380. This requirement

is generally unsatisfied where (1) the district court has not yet foreclosed the relief

sought in the petition, see Kerr v. U.S. Dist. Court,

, 404–06 (1976); see

also, e.g., Philip Morris Inc. v. Nat’l Asbestos Workers Med. Fund,

(2d

Cir. 2000) (per curiam), or (2) the petitioner can obtain relief through the regular

appeals process, see Cheney, 542 U.S. at 380–81.

Appearing as amicus, Judge Underhill contends that his ruling permitting

defense counsel to argue jury nullification did “‘not foreclose’ the relief the

[g]overnment seeks” because it was contingent on later rulings of the court. Brief

of the Honorable Stefan R. Underhill as Amicus Curiae at 14 (quoting Kerr,

); see also, e.g., In re Cohn,

(2d Cir. 1969) (per curiam)

(denying a petition for writ of mandamus where it was “clear that the district

judge, in denying the application for adjournment [of trial], d[id] not view his

10 action as being final”). In particular, Judge Underhill argues that his ruling was

contingent on whether evidence of the applicable mandatory minimums would

later be ruled admissible at trial. We are not persuaded.

As an initial matter, Manzano did not seek permission to argue jury

nullification only in the event he could introduce evidence of the mandatory

minimums at trial. Rather, he filed a pretrial “Motion to Permit Counsel to Argue

Jury Nullification,” which sought the court’s permission “both to inform the jury

of the consequences of a conviction, and to argue to the jury that the law as applied

[to] the particular facts of this case is . . . fundamentally unfair.” Doc. No. 30 at 2.

Likewise, the government’s request to preclude defense counsel from arguing jury

nullification was not predicated on the admissibility of evidence. In its opposition

to Manzano’s motion, the government requested that counsel be precluded from

arguing jury nullification “through a jury address, witness examination, or offer

of evidence.” Doc. No. 36 at 7. The government’s motions in limine similarly

sought “to preclude evidence and/or argument of the propriety of the

[g]overnment’s prosecution.” Doc. No. 45 at 9–10 (emphasis added).

The district court granted Manzano’s motion and denied the government’s

corresponding request and motion in limine without any relevant qualification.

11 Although the district court recognized that evidence of the mandatory minimums

was a basis for defense counsel’s jury nullification argument, the district court did

not limit its ruling to that basis. Rather, the district court ruled: “If evidence comes

in about the length of sentence, or if [defense counsel] chooses to argue, I do not feel

that I can preclude that. . . . And I think justice requires that I permit that.” Doc.

No. 60 at 34–35 (emphasis added). Consistent with this unambiguous statement,

the district court memorialized its ruling in a minute entry that stated clearly and

without any qualification that “[Manzano’s] motion is granted to the extent it seeks

permission to argue for jury nullification.”3 Doc. No. 58. On this record, there can

be no doubt that the district court granted defense counsel’s request to argue jury

3 Our dissenting colleague points to the district court’s remark, made at a hearing held later the same day, that if “evidence of the mandatory minimum[s] . . . comes in as a matter of trial evidence, [defense counsel] is permitted to argue from that to the jury.” Doc. No. 62 at 6–7. That statement, however, came only after the district court had already ruled, and in any event, it was consistent with the court’s earlier observation that evidence of the mandatory minimums was one way in which defense counsel might attempt to argue nullification. Moreover, in the same hearing, the district court also stated that it was “simply allowing [defense counsel] to argue as he chooses to argue,” while recognizing that “juries have the power to nullify, and [defense counsel] intends to argue that they should.”

at 4–5. The dissent also relies in part on arguments advanced by Judge Underhill as amicus. Dissenting Op. at 16. While we have given due consideration to these arguments, which Judge Underhill permissibly raised through counsel in this mandamus proceeding, see Ligon v. City of New York,

, 171 & n.11 (2d Cir. 2013), ultimately we must ground our assessment of the proceedings below in the record rather than the parties’ briefs, see, e.g., Cross & Cross Properties, Ltd. v. Everett Allied Co.,

(2d Cir. 1989). 12 nullification at trial, and that such a ruling was not contingent on later evidentiary

rulings of the court.

We also conclude that the ordinary appeals process would not afford the

government an adequate means of obtaining the relief it seeks. See Cheney, 542

U.S. at 380–81. The regular appeals process will be unavailable to the government

if Manzano prevails at trial, because double jeopardy will have attached and the

government will not be able to appeal the jury’s verdict of acquittal. See U.S. Const.

amend. V;

; see also, e.g., United States v. Amante,

(2d Cir. 2005). Conversely, “if the government were to secure a conviction, any

appeal would be moot and any alleged error would necessarily be harmless.”

Amante,

. It is true, of course, that mandamus may not be invoked

as a “substitute” for an interlocutory appeal – an uncontroversial rule that is made

no “less compelling by the fact that the [g]overnment has no later right to appeal.”

Will v. United States,

(1967) (internal quotation marks, citation, and

ellipses omitted). Our precedents make it abundantly clear, however, that the

government’s limited right of appeal in criminal cases is relevant to the mandamus

inquiry. See, e.g., Amante,

; In re United States,

(2d

Cir. 1990); see also United States v. Sam Goody, Inc.,

(2d Cir. 1982)

13 (discussing the rule stated in Will and recognizing that “[t]he writ thus is not to be

granted merely because it is the only way in which the district court’s new‐trial

order might be reviewed” (emphasis added)), superseded by statute on other grounds

as stated in United States v. Hundley,

(2d Cir. 1988); United States v.

Weinstein,

(2d Cir. 1975) (granting a petition for writ of

mandamus in part due to the “risk that the [g]overnment might be precluded on

double jeopardy grounds from appealing”). Thus, the first Cheney condition is

plainly satisfied. See Amante,

; In re United States,

.

2. “Clear and Indisputable” Right to the Writ

The second Cheney condition requires that a petitioner’s “right to issuance

of the writ [be] ‘clear and indisputable.’”

(quoting Kerr,

). This condition is satisfied where a district court commits “a clear and

indisputable abuse of its discretion,” that is, where the court clearly and

indisputably “base[s] its ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence, or . . . render[s] a decision that cannot be

located within the range of permissible decisions.” Linde v. Arab Bank, PLC,

(2d Cir. 2013) (quoting SEC v. Rajaratnam,

(2d Cir.

2010)).

14 We focus here on the first form of abuse of discretion – a ruling based on an

erroneous view of the law. The government contends that the district court clearly

and indisputably based its ruling on the erroneous legal view that a defendant

may, in certain circumstances, argue jury nullification. Manzano responds that

the government’s right to a writ of mandamus is not clear and indisputable

because no binding authority specifically prevents a district court from allowing

counsel to argue jury nullification. The necessary implication of Manzano’s

argument is that district courts have the discretion to allow jury nullification

arguments in certain cases, and that the district court’s ruling in this case was not

clearly outside the “range of permissible decisions.”

Manzano’s argument misperceives our mandamus standard. We have

never required petitioners to point to binding authority directly on point in order

to establish their entitlement to the writ. See, e.g., Stein,

. Indeed,

imposing such a requirement would mean casting aside one of the “touchstones”

of mandamus review – the “presence of an issue of first impression.” Amante,

; see also Schlagenhauf v. Holder,

(1964) (concluding that

the Court of Appeals should have exercised its mandamus power over “issues of

first impression” in order “to settle new and important problems”); infra at 22.

15 Thus, in determining whether a district court has clearly and indisputably

based its ruling on a legal error, we do not confine our review to the narrow (and

often empty) universe of binding cases directly on point. See, e.g., In re City of New

York,

(2d Cir. 2010). Instead, as in any case, we may consider all

relevant legal authorities. See, e.g., id.; see also, e.g., San Jose Mercury News, Inc. v.

U.S. Dist. Court,

, 1102 (9th Cir. 1999) (“While we have never squarely

[answered the question presented in this mandamus petition], we conclude that

the unbroken string of [analogous and out‐of‐circuit] authorities . . . leaves little

doubt as to the answer.”). The ultimate question is simply whether, bearing in

mind the exceptional nature of mandamus, we are left with the “firm conviction”

that the district court’s view of the law was incorrect.4 In re Int’l Bus. Machines

Corp.,

(2d Cir. 1982); see also In re Cement Antitrust Litig. (MDL No.

296),

, 1305–07, 1306 n.6 (9th Cir. 1982) (adopting the “firm

4 The dissent labels this formulation of the “clear and indisputable” requirement as “entirely ad hoc,” “generat[ing] chaos,” and amounting to no “justiciable standard.” Dissenting Op. at 20–21. But courts routinely apply this formulation in the mandamus context, see, e.g., In re Int’l Bus. Machines Corp.,

(2d Cir. 1982); see also, e.g., In re Bryant,

, 220 (5th Cir. 2018); In re United States,

, 836–37 (9th Cir. 2018); Waymo LLC v. Uber Techs., Inc.,

(Fed. Cir. 2017); John B. v. Goetz,

(6th Cir. 2008), and of course this formulation of the clear‐error standard has been ubiquitous in the context of appellate review of factual findings since the Supreme Court first articulated it in United States v. United States Gypsum Co.,

(1948); see also, e.g., United States v. Simmons,

(2d Cir. 2011) (“In order to [reverse for clear error], we must be left with the definite and firm conviction that a mistake has been committed.” (internal quotation marks and citation omitted)).

16 conviction” standard for clear legal error in the mandamus context (citing Int’l Bus.

Machines, 687 F.2d at 599–603)), aff’d by an equally divided court sub nom. Arizona v.

U.S. Dist. Court,

(1983).

In this case, we are left with the firm conviction that the district court based

its jury nullification ruling on an erroneous view of the law. Our case law is clear:

“it is not the proper role of courts to encourage nullification.” United States v.

Polouizzi,

, 162–63 (2d Cir. 2009). Rather, “the power of juries to

‘nullify’ or exercise a power of lenity is just that – a power; it is by no means a right

or something that a judge should encourage or permit if it is within his authority

to prevent.” United States v. Thomas,

(2d Cir. 1997).

Here, the district court in fact recognized that our case law “preclude[d] it

from encouraging the jury” to nullify, Doc. No. 60 at 34, but then proceeded to

draw an arbitrary distinction between encouraging the jury via jury instructions –

which it properly deemed impermissible – and granting defense counsel’s motion

to argue nullification. This distinction is unsupported by our case law.

In Thomas, we concluded that “a presiding judge possesses both the

responsibility and the authority to dismiss a juror whose refusal or unwillingness

to follow the applicable law becomes known to the judge during the course of

17 trial.”

. In reaching that conclusion, we explained in no uncertain

terms that “trial courts have the duty to forestall or prevent” jury nullification.

. Our reasoning was thus not limited to the specific facts at issue. Instead,

“tak[ing] th[e] occasion to restate some basic principles regarding the character of

our jury system,” we “categorically reject[ed] the idea that, in a society committed

to the rule of law, jury nullification is desirable or that courts may permit it to occur

when it is within their authority to prevent.”

. We have since applied the

principles set forth in Thomas beyond the specific circumstances of that case, see,

e.g., Polouizzi, 564 F.3d at 162–63; United States v. Carr,

, 219–21 (2d Cir.

2005); United States v. Pabon‐Cruz,

(2d Cir. 2004), and we have no

hesitation doing so again here.

Applying the principles enunciated in Thomas, we emphatically reject the

rule, advanced by Judge Underhill as amicus, that district courts are free to permit

jury nullification arguments whenever they feel justice so requires – in other

words, in any case in which the court strongly disagrees with the government’s

charging decisions and the attendant sentencing consequences. As a practical

matter, there is no meaningful difference between a court’s knowing failure to

remove a juror intent on nullification, a court’s instruction to the jury that

18 encourages nullification, and a court’s ruling that affirmatively permits counsel to

argue nullification. In each of these situations, the conduct in question subverts

the jury’s solemn duty to “take the law from the court, and apply that law to the

facts of the case as they find them to be from the evidence.” Sparf v. United States,

(1895); see United States v. Trujillo,

(11th Cir. 1983)

(“We therefore join with those courts which hold that defense counsel may not

argue jury nullification during closing argument.”); see also, e.g., United States v.

Gonzalez‐Perez,

, 18–19 (1st Cir. 2015); United States v. Dougherty,

, 1130–37 (D.C. Cir. 1972). District courts have a duty to forestall or prevent

such conduct, see Thomas,

, and the district court in this case

abdicated its duty by ruling that defense counsel could argue jury nullification.5

We have no doubt that in granting Manzano’s motion to argue for jury

nullification, Judge Underhill was acting under the sincere belief that his ruling

was consistent with, and perhaps mandated by, the ends of justice. Nevertheless,

individual judges, cloaked with the authority granted by Article III of the

Constitution, are not at liberty to impose their personal view of a just result in the

5 Indeed, Judge Underhill’s statements that he thought this case “calls for jury nullification,” and that “justice cannot be done here if the jury is not informed, perhaps by [defense counsel],” of the sentencing consequences, Doc. No. 60 at 34–35, suggest not simply a ruling that actively permits nullification, but literal encouragement of jury nullification. 19 face of a contrary rule of law. See Hart v. Massanari,

(9th

Cir. 2001) (“Judges of the inferior courts may voice their criticisms [of a law], but

follow it they must. . . . A district court bound by circuit authority, for example,

has no choice but to follow it, even if convinced that such authority was wrongly

decided.”); see also Armstrong v. Exceptional Child Ctr., Inc.,

(2015) (“[O]nce a case or controversy properly comes before a court, judges are

bound by federal law.”). Nor are judges prosecutorial gatekeepers who may

override the government’s constitutional exercise of charging discretion in the

name of justice. See United States v. Batchelder,

(1979); United States

v. Lovasco,

(1977). Contrary to the dissent’s suggestion, the fact

that we might disagree with the government’s charging decision, or lack a full

understanding of that decision, provides no basis for holding this matter in

abeyance and remanding so that the prosecutors can “revisit their charging

decision” or “provide information as to why they believed their decision was

appropriate.” Dissenting Op. at 1. Subject to narrow exceptions not implicated

here, “so long as the prosecutor has probable cause to believe that the accused

committed an offense defined by statute, the decision whether or not to prosecute,

and what charge to file or bring before a grand jury, generally rests entirely in his

20 discretion.” United States v. Armstrong,

(1996); see also, e.g., United

States v. Ng,

(2d Cir. 1983) (“Although one may reasonably disagree

with the [government’s] judgment in the matter, the evaluation of charges clearly

rested within [its] prosecutorial discretion.”).

Finally, the district court’s ruling may not be upheld on the basis of its

supervisory power “to oversee the administration of criminal justice within

federal courts.” United States v. Johnson,

(2d Cir. 2000). As the

Supreme Court has held, “the supervisory power does not extend so far” as to

“confer on the judiciary discretionary power to disregard the considered

limitations of the law it is charged with enforcing.” United States v. Payner,

(1980); see also United States v. Myers,

(2d Cir. 1982)

(“[Supervisory power] has not been used as a general corrective authority over the

conduct of criminal investigations, and, in light of Payner, its scope is surely not to

be expanded.”). Clearly, then, the supervisory power does not authorize a court

to grant a defendant’s request to argue that the jury should disregard the law.

For these reasons, we are firmly convinced that the district court’s jury

nullification ruling was based on an erroneous view of the law.6 Accordingly, the

6In so concluding, we have no occasion to pass on whether, or to what extent, a district court must sua sponte police a lawyer’s arguments to the jury that sound in nullification. 21 government has a clear and indisputable right to a writ of mandamus directing

the district court to deny defense counsel’s request for leave to argue nullification.

3. Appropriateness of Mandamus under the Circumstances

The third and final Cheney condition requires us to determine whether “the

writ is appropriate under the circumstances.” Cheney,

. “This

requirement recognizes that ‘issuance of the writ is in large part a matter of

discretion with the court to which the petition is addressed.’” Linde,

(quoting Kerr,

). In exercising this discretion, we may “consider

a range of factors, including whether the petition presents a ‘novel and significant

question of law’ . . . [or] ‘a legal issue whose resolution will aid in the

administration of justice.’”

(quoting In re City of New York,

).

We have little trouble concluding that mandamus is appropriate here. The

specific question of whether a district court may actively permit a defendant to

argue jury nullification is novel and significant in this circuit. Furthermore,

resolving this issue will aid in the administration of justice. Obviously, our

decision will serve to guide district courts in any criminal case in which a

defendant requests leave to argue jury nullification or the government moves to

preclude such argument. But more generally, today we reaffirm a principle of

22 fundamental importance in our jury system: namely, that the role of the court is

to ensure, to the extent possible, that justice is done in accordance with the law –

not in derogation of it. This principle is worthy of our mandamus jurisdiction.

Because the government has satisfied all three Cheney conditions, we grant

the government’s petition for a writ of mandamus directing the district court to

vacate its prior order and to deny defense counsel’s request for leave to argue jury

nullification at trial.

B. Evidence of Mandatory Minimum Sentences

The government also seeks a writ of mandamus directing the district court

to bar the admission of any evidence related to the sentencing consequences that

would result from Manzano’s convictions. With respect to this form of mandamus

relief, we conclude that the Cheney conditions are not satisfied at this time.

1. Other Adequate Means to Obtain the Relief Sought

As for the first Cheney condition, the government arguably has other means

short of mandamus to preclude the introduction of the statutory mandatory

minimums, since the district court has yet to rule on the admissibility of such

evidence. See Kerr, 426 U.S. at 404–06; see also, e.g., In re United States,

(9th Cir. 2018); Philip Morris Inc.,

. In contrast to the district 23 court’s ruling that defense counsel would be permitted to argue for jury

nullification at trial, the district court consistently manifested its intent to defer

ruling on the admissibility of evidence related to sentencing consequences until

after the commencement of trial. When ruling on Manzano’s request to argue jury

nullification, the district court observed that one way in which Manzano could

argue nullification was through evidence related to sentencing consequences “if

[such] evidence comes in.” Doc. No. 60 at 34 (emphasis added). Similarly, at the

October 29, 2018 emergency motion hearing, the district court again recognized

that evidence of sentencing consequences could support Manzano’s jury

nullification arguments “if that evidence comes in as a matter of trial evidence.”

Doc. No. 62 at 6. Thus, the district court has not yet ruled out the possibility that

evidence related to sentencing consequences will be precluded at trial.

Of course, insofar as the government’s petition specifically seeks a pretrial

evidentiary ruling precluding evidence of sentencing consequences, mandamus

now would be the only means by which the government could obtain such relief,

since the district court expressly deferred its ruling until after the commencement

of trial. Nevertheless, even assuming that the government has preserved a specific

24 request for pretrial relief, we conclude that the government’s right to the writ is

not clear and indisputable for the reasons set forth below.

2. “Clear and Indisputable” Right to the Writ

In general, a mandamus petitioner challenging a district court’s

discretionary ruling faces a particularly daunting task. As we have explained, a

petitioner may satisfy the second Cheney condition by demonstrating that the

district court clearly and indisputably abused its discretion in rendering a decision

that is well outside “the range of permissible decisions.” Linde,

(quoting Rajaratnam,

). However, the more discretion the district

court enjoys in a given area, the greater the range of permissible decisions, and

thus the less likely it will be that any abuse of discretion is “clear and

indisputable.” See Allied Chem. Corp. v. Daiflon, Inc.,

(1980) (per

curiam) (“Where a matter is committed to discretion, it cannot be said that a

litigant’s right to a particular result is ‘clear and indisputable.’”); UAW v. Natʹl

Caucus of Labor Comms.,

(2d Cir. 1975) (“As to orders which lie

within the discretion of the district judge[,] it is settled law in this Circuit that

mandamus will not – indeed, may not – be issued except in the most extraordinary

circumstances.”).

25 In this case, by seeking a writ of a mandamus directing the district court to

issue a pretrial ruling precluding any evidence of sentencing consequences at trial,

the government necessarily challenges not one, but two discretionary decisions:

(1) the district court’s decision regarding when to rule on pretrial evidentiary

motions, and (2) its decision regarding how to rule on the merits of those motions.

As for when an evidentiary ruling must be made, district courts enjoy broad

discretion to defer ruling on a pretrial motion for “good cause.” Fed. R. Crim. P.

12(d); see also United States v. Barletta,

, 57–59 (1st Cir. 1981). A district

court may defer ruling where, for example, the resolution of a pretrial motion

might depend in part upon evidence to be introduced at trial. See United States v.

Shortt Accountancy Corp.,

(9th Cir. 1986); Barletta, 644 F.2d at

57–59; see also, e.g., United States v. Williams,

, 952–53 (2d Cir. 1981).

Similarly, with respect to the merits of an evidentiary ruling, district courts “enjoy

considerable discretion to decide evidentiary issues” within the bounds of the

Federal Rules of Evidence. United States v. Gabinskaya,

(2d Cir.

2016); see also United States v. Coppola,

(2d Cir. 2012) (“The

standard of review applicable to [an appellant’s] Rule 401/403 challenge is highly

deferential in recognition of the district court’s superior position to assess

26 relevancy and to weigh the probative value of evidence against its potential for

unfair prejudice.” (internal quotation marks and citation omitted)).

The government attempts to cut through these layers of discretion by

arguing, in essence, that the district court committed clear legal error (and thus a

clear abuse of discretion) by failing to preclude evidence of the mandatory

minimum sentences, which will be offered solely for the improper purpose of

encouraging nullification. If we were confident in the premise that evidence of

sentencing consequences will be offered solely for that improper purpose, we

would agree that the district court clearly erred in failing to preclude such

evidence, even at the pretrial stage. As the government correctly argues, there is

no difference between improperly permitting defense counsel to argue

nullification and admitting evidence for the sole purpose of encouraging

nullification. See United States v. Funches,

(11th Cir. 1998)

(“Because the jury enjoys no right to nullify criminal laws, and the defendant

enjoys a right to neither a nullification instruction nor a nullification argument to

the jury, the potential for nullification is no basis for admitting otherwise irrelevant

evidence.”). Evidence admitted solely to encourage nullification is by definition

irrelevant, and thus inadmissible, regardless of what other evidence might be

27 introduced at trial. See Fed. R. Evid. 401–02; Shannon v. United States,

(1994).

On the sparse pretrial record in this case, however, it is not clear whether

Manzano will seek to introduce evidence of sentencing consequences solely for the

purpose of encouraging nullification. Indeed, at oral argument, defense counsel

proffered an additional purpose for such evidence. Specifically, counsel stated

that he may offer as impeachment evidence M.M.’s purported Facebook post of

the government’s press release setting forth the mandatory minimums for the

purpose of showing M.M.’s bias or improper motive. In that event, given that

there is no “absolute prohibition” on exposing the jury to sentencing

consequences, Shannon,

; see also Polouizzi,

, the district

court would need to assess whether the alleged impeachment evidence is relevant

based on how the trial unfolds (e.g., whether M.M. testifies and the nature of her

testimony), and, if it is, whether it passes muster under Rule 403, see, e.g., United

States v. DiMarzo,

(1st Cir. 1996).

Thus, we cannot rule out the possibility that the admissibility of sentencing

consequences will depend at least in part on events that will unfold at trial. In

these circumstances, the district court’s decision to defer ruling on the

28 admissibility of sentencing consequences until after the commencement of trial

was not clearly and indisputably outside the range of permissible decisions. See

Barletta, 644 F.2d at 57–59; Shortt Accountancy Corp.,

. Because the

district court’s decision therefore did not constitute a clear and indisputable abuse

of discretion, the second Cheney condition is not satisfied.

Lest our decision be misunderstood, however, we must emphasize two

important points. First, if the district court finds that Manzano is indeed seeking

to introduce evidence of sentencing consequences solely for the purpose of

encouraging nullification, the court must exclude that evidence as irrelevant. See

supra at 27–28. Second, by concluding that the demanding mandamus standard

has not been satisfied on the pretrial record here, we do not thereby endorse a rule

that evidence of sentencing consequences is generally admissible under Rule 403.

In this context, a district court’s discretion should be guided by the special

considerations referenced in Shannon – namely, that evidence of sentencing

consequences “invites [jurors] to ponder matters that are not within their province,

distracts them from their factfinding responsibilities, and creates a strong

possibility of confusion.”

; see also, e.g., DiMarzo,

(concluding that even if evidence of a “guideline sentencing range had some

29 minimal probative value,” the district court did not err in excluding it “given the

considerations alluded to in Shannon” (citing Fed. R. Evid. 403)).

At this time, however, we do not undertake to define the rare circumstances

in which evidence of sentencing consequences might pass muster under Rule 403.

Nor do we offer any opinion on whether those circumstances might present

themselves during the trial in this case. Rather, we simply hold that, on the pretrial

record here, the government has failed to demonstrate its clear and indisputable

right to the writ as required by the second Cheney condition.

Accordingly, we deny the government’s petition for a writ of mandamus

directing the district court to preclude the introduction at trial of any evidence

related to sentencing consequences, without prejudice to renewal following the

district court’s ultimate ruling on the motion to preclude. Because our familiarity

with the procedural history and issues in this case will allow us to respond

expeditiously to any future petition during trial, this panel will retain jurisdiction

over any future petition in this case related to the admissibility of the sentencing

consequences of a conviction or, more generally, jury nullification. See, e.g., Philip

Morris Inc., 214 F.3d at 135–36.

30 III. CONCLUSION

The jury remains today, as it has been for centuries, “a central foundation of

our justice system and our democracy.” Peña‐Rodriguez v. Colorado,

(2017). For our system to work, the court and the jury must work as partners

to ensure that justice is done in accordance with the law. Of course, jurists and

laypersons alike may disagree over whether justice and the law align in a given

case. It is paramount, however, that in a society committed to the rule of law

courts may not encourage or actively permit juries to ignore the law in the name

of justice. See Sparf,

; Thomas,

; Dougherty, 473 F.2d at

1133–34; United States v. Simpson,

, 519–20 (9th Cir. 1972).

For the foregoing reasons, the petition for a writ of mandamus directing the

district court to deny defense counsel’s request for leave to argue jury nullification

is GRANTED. The petition for a writ of mandamus directing the district court to

exclude any evidence related to sentencing consequences is DENIED. The district

court is hereby instructed to lift the stay of trial proceedings.

31 BARRINGTON D. PARKER, Circuit Judge, concurring in part and dissenting in part:

We are fortunate that the prosecutors in this Circuit nearly always bring a

high degree of professionalism, good judgment, and common sense to bear in the

exercise of their responsibilities. This case presents the unusual circumstance

where a conscientious jurist is confronted with a charging decision that, in his

considered judgment, reflects an abuse of prosecutorial power. Charging decisions

are, of course, by and large the exclusive province of prosecutors.

There is a straightforward solution that could avoid the problems raised by

the petition and discussed in this dissent. The petition should be held in abeyance

and the case remanded to the District Court, at which time the prosecutors could

revisit their charging decision. If they chose not to do so, they could provide

information as to why they believed their decision was appropriate. If this

approach did not resolve the problem, this Court could then revisit the petition.

Faced with the Government’s charging decision, Judge Underhill could, I

suppose, have acquiesced in whatever the prosecutors wanted. But he is not a

piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he

pushed back. I believe that most conscientious jurists would have done the same.

I have no difficulty concluding that Judge Underhill was right to do so. “[F]ederal

1 courts have authority under their supervisory powers to oversee the

administration of criminal justice within federal courts.” United States v. Johnson,

(2d Cir. 2000) (quoting Daye v. Attorney Gen.,

(2d Cir. 1983)). They should use these powers “to see that the waters of justice are

not polluted” and “to protect the integrity of the federal courts.” United States v.

Payner,

(1980); accord United States v. HSBC Bank USA, N.A.,

(2d Cir. 2017). Their supervisory powers are not restricted to the

protection of explicit constitutional rights. McNabb v. United States,

(1943). The powers exist “in order to maintain respect for law” and to

“promote confidence in the administration of justice.” Olmstead v. United States,

(1928) (Brandeis, J., dissenting); accord Donnelly v. DeChristoforo,

(1974); United States v. Getto,

(2d Cir. 2013). The

supervisory powers should be sparingly exercised. HSBC,

. Judges

are not, of course, free to disregard the limitations of the law they are charged with

enforcing under the guise of exercising supervisory powers or at other times.

Payner,

. But since Payner, we have recognized that within their

supervisory powers, courts should “not hesitate to scrutinize the Government’s

conduct to ensure that it comports with the highest standards of fairness.” Johnson,

2

(quoting United States v. Lawlor,

(2d Cir. 1999)). This

requirement applies with particular force in contexts such as charging and

sentencing, especially those involving mandatory minimum sentences, where the

Government plays an “often decisive role.”

Whether Judge Underhill went too far is debatable. But because this case

does not come close to meeting the exacting standards for mandamus, I

respectfully dissent from the majority’s grant of a writ directing the District Court

to allow no arguments for jury nullification. I concur to the extent that the majority

denies a writ directing the District Court to exclude at trial evidence of sentencing

consequences.

I

Our knowledge of the relevant facts, as the majority concedes, is incomplete:

significant holes exist in the record and pretrial proceedings remain ongoing. What

we know by way of background is that in the course of a state investigation of a

statutory rape charge, Connecticut prosecutors discovered a video, which they

referred for federal prosecution. The video depicted Manzano, who was thirty‐

one, and M.M, a fifteen‐year old girl who was a tenant in the building where he

was superintendent, engaging in explicit sexual conduct. M.M. knew that

3 Manzano was recording the video at the time, and there is no evidence that he had

threatened her.

Eventually, Manzano attempted to delete the video, but he was

unsuccessful. Unbeknownst to him, the video remained in the cloud storage

associated with Manzano’s Google account, where digital forensic examiners

discovered it. There is no suggestion in the record that the video was ever shared

with anyone else, a point the prosecutors concede. Indeed, there is no indication

in the record that anyone aside from Manzano has ever seen the video (except, of

course, the Government). Because the cellular phone that recorded the video had

traveled in interstate commerce, and Google cloud storage is hosted on servers in

several states, the prosecutors charged Manzano with interstate production and

transportation of child pornography. These offenses carry mandatory minimum

sentences of fifteen and five years, respectively.

In May 2018, a grand jury indicted Manzano on the two counts and the case

was assigned to Judge Underhill. Early in the case, Judge Underhill told Assistant

U.S. Attorneys Neeraj Patel and Sarah Karwan what he thought of the

Government’s charging decision. He called this a “shocking case” and said that he

was “absolutely stunned” that the Government had brought a charge carrying a

4 fifteen‐year mandatory minimum, a charge that gave him no sentencing

discretion. United States v. Manzano, No. 18‐cr‐95 (SRU) (D. Conn. Oct. 29, 2018),

ECF No. (“Doc. No.”) 60, at 34. The record does not contain an explanation from

the prosecutors.

During pretrial proceedings, Manzano sought permission to argue for jury

nullification. His counsel contended that the prosecutors’ “application of the law

to the particular facts of this case is an obscene miscarriage of justice” and that the

conduct in question “is in no way so sinister as to warrant such a penalty” because

it “is not the sort of conduct Congress sought to proscribe.” Doc. No. 30, at 1‐2.

The court did not rule on the motion at that point.

Manzano proposed raising jury nullification during voir dire. Specifically,

he requested that Judge Underhill inform the jurors of their “right to determine

whether the Government has justly prosecuted” Manzano and ask whether they

were “comfortable sitting in judgment over the Government’s decision to

prosecute.” Doc. No. 35, at 1. Manzano also requested that prospective jurors be

asked whether they understood that one of their “functions as jurors in judging

whether the Government has justly proceeded in this prosecution is to determine

whether the sentencing consequences of a conviction are fair, just and reasonable.”

5 Id. at 2. Ultimately, the District Court declined to ask these questions. Judge

Underhill later explained:

I screened out jurors at jury selection, and anybody who could not follow the law we struck for cause. So this jury has already been selected with jurors who can follow the rule of law. And at that time I rejected [Manzano’s] efforts to raise the jury nullification issue; and there is no reason to believe, therefore, that this jury is prone to nullification. So I have done what I can to minimize the risk of nullification, as I am required to do.

Doc. No. 62, at 3.

A week before trial was scheduled to begin, Manzano submitted a proposed

jury charge on nullification, which would have instructed the jury that it had “the

power to determine whether the Government has justly prosecuted Mr. Manzano

for the crimes charged in this case.” Doc. No. 44, at 1. The District Court did not

adopt this charge, and it instead stated its intention to instruct the jury as follows:

Duties of the Jury

It is your duty to find the facts from all evidence in the case. In reaching a verdict you must carefully and impartially consider all the evidence in the case and then apply the law as I have explained it to you. Regardless of any opinion you may have about what the law is or ought to be, it would be a violation of your sworn duty to base a verdict upon any understanding or interpretation of the law other than the one I give you. . . .

6 Closing Instructions on Charged Offenses

If you, the jury, find beyond a reasonable doubt from the evidence in this case that the government has proved each of the foregoing elements for a particular count, then proof of the crime charged is complete, and you should find Mr. Manzano guilty on that count. . . .

The Jury Is Not to Consider Punishment

The question of the possible punishment that Mr. Manzano will receive if convicted is of no concern to the jury and should not, in any way, enter into or influence your deliberations. The duty of imposing a sentence rests exclusively upon the judge. Your function is to weigh the evidence in the case and to determine whether or not Mr. Manzano has been proven guilty beyond a reasonable doubt of the crimes charged, solely upon the basis of such evidence. Under your oath as jurors, you cannot allow a consideration of the punishment that may be imposed upon Mr. Manzano, if convicted, to influence your verdict or enter into your deliberations.

Doc No. 62, at 5‐6 (emphasis added). We, of course, presume that the jury would

follow these instructions.

At a pretrial conference on October 29, Manzano renewed his request to

argue for jury nullification. Manzano stressed that the case involved a brief video,

deleted before anyone had seen it. The Court responded:

This is a shocking case. This is a case that calls for jury nullification. I have been told by the Second Circuit that I cannot encourage jury nullification, and I do not intend to encourage jury nullification. But I am absolutely stunned that this case, with a 15‐year mandatory minimum, has been brought by the government.

7 I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct or the lack of seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I’m not sure.

So the law precludes me from charging the jury, the law precludes me from encouraging the jury, and I don’t intend to do that. But if evidence comes in about the length of sentence, or if [defense counsel] chooses to argue, I do not feel that I can preclude that. I don’t feel I’m required to preclude that. And I think justice requires that I permit that. So it’s not going to come from me, but I think justice cannot be done here if the jury is not informed, perhaps by [defense counsel], that that’s the consequence here.

Doc No. 60, at 34‐35 (emphasis added). The District Court, after discussing in detail

the relevant law, stated, “I have no intention as I said this morning, of instructing

the jury on the mandatory minimums or their power to nullify. Instead, I am

simply allowing [Manzano] to argue as he chooses to argue. . . . I also intend to, as

I said this morning, instruct the jury specifically that they must follow the law.”

Doc. No. 62, at 4‐5.

Later that day, the clerk made a minute entry stating that “[Manzano’s]

motion is granted to the extent it seeks permission to argue for jury nullification.”

Contrary to what the majority contends, what Judge Underhill actually decided is,

as I read the record, not set forth simply in the minute entry. That entry must be

read in conjunction with his remarks on the record. He made clear that he could

8 not and would not encourage jury nullification. Judge Underhill explained only

that if evidence of the mandatory minimum properly came before the jury, he did

not think he could preclude or would be required to preclude defense counsel

from making arguments to the jury based on that evidence. Whether defense

counsel could fashion permissible legal arguments is something we cannot know

at this point. What we do know is that Judge Underhill made unmistakably clear

that he intended to instruct the jury that punishment was of no concern to them

and that jurors could not allow a consideration of punishment to influence their

deliberations or their verdict.

The prosecutors moved to stay the trial to allow time to pursue a potential

mandamus petition. After explaining why mandamus was not appropriate and

warning that forbidding Manzano from making arguments grounded in properly

admitted evidence could raise Sixth Amendment concerns, the District Court

stayed the trial pending resolution of any mandamus petition filed by the

prosecutors.

II

An especially unsettling aspect of this case is that the record the prosecution

presented to the District Court and to this Court is barren of anything that would

9 explain, much less justify, the prosecutors’ decision to file the most serious child

pornography charges available to them against a man who made a single video

which no one else ever saw and which he then attempted to erase. Based on what

he had seen, Judge Underhill believed that a miscarriage of justice would occur if

this man were required to spend fifteen years in prison for this conduct.

During proceedings below, Judge Underhill called on the prosecutors to

explain their charging decision. They did not do so.1 During oral argument, we

asked Assistant U.S. Attorney Sandra Glover for help in understanding the

Government’s charging decision. Again, we got nothing of use. We were told only

that the Government had additional information about Manzano that it expected

to bring forth at sentencing. The incompleteness of the record before us

underscores the inappropriateness of mandamus. I do not believe mandamus can

be an appropriate remedy when essential information is unavailable.

If convicted, Manzano deserves substantial punishment, but the conduct

charged in this case does not remotely resemble the conduct for which prosecutors

have threatened fifteen‐year mandatory sentences in any of the myriad child

pornography cases decided in this Circuit. See, e.g., United States v. Brown, 843 F.3d

1Instead, they stated that they might offer evidence in rebuttal or at sentencing that would speak to the appropriateness of a lengthy sentence. Doc. No. 60, at 35‐36.

10 74, 78 (2d Cir. 2016) (25,000 still images, 365 videos, 4 images involving torture, 60

displaying bondage, 30 depicting bestiality, 18 involving infants, 294 victims);

United States v. Gilmore,

(2d Cir. 2010) (70 photographs of eight‐

year‐old daughter distributed online; physical sexual abuse facilitated by liquor

and sleeping pills; collection of 662 images and 10 video clips); United States v.

Jimenez, No. 16‐cr‐60‐A,

, at *1 (W.D.N.Y. May 22, 2019)

(babysitter repeatedly raped and photographed three‐year‐old girl over the course

of eight‐and‐a‐half months); United States v. Thomas, No. 12‐cr‐37,

, at *2 (D. Vt. Aug. 30, 2018) (hundreds of videos and misrepresentation of

identity to solicit 12‐year‐old girl); United States v. Rafferty,

(2d

Cir. 2013) (summary order) (production of four videos of nine‐year‐old girl

engaging in sexual conduct with mentally ill adult woman); United States v. Spoor,

(2d Cir. 2018) (numerous videos of seven‐ and eight‐year‐old

boys, including defendant’s son, filmed using hidden camera); United States v.

Archambault,

, 202 (2d Cir. 2018) (summary order) (recidivist

offender with evidence of repeated acts of predation); United States v. Broxmeyer,

, 269‐70 (2d Cir. 2012) (field hockey coach distributed explicit photos

of himself to high school students, encouraged them to produce similar images,

11 and engaged them in intercourse and sodomy); United States v. Puglisi,

, 35‐36 (2d Cir. 2012) (summary order) (teacher offered repeated material

inducements to teenage students and obstructed authorities’ attempts to obtain

evidence). See generally United States v. Jenkins,

(2d Cir. 2017)

(discussing the severity of child pornography sentencing); United States v. Dorvee,

(2d Cir. 2010) (same).

It is highly unlikely—indeed inconceivable—that what Manzano did was

what Congress had in mind when it provided for fifteen‐year mandatory

sentences. Cf. United States v. Murphy,

, 80 (2d Cir. 2019) (recognizing

the relevance of “how the statute was intended to operate” in assessing the

propriety of up to thirty years’ imprisonment for a charged offense). Manzano’s

single video did not involve the commercial production or distribution or

filesharing of child pornography. The video, made with the knowledge of both

subjects, did not depict sadistic, masochistic, or violent conduct. The charged

offense involved one video, not 600 or more images.2 Moreover, whereas courts

2Manzano’s conduct was less severe than the vast majority of cases where mandatory minimum sentences were imposed. Unlike 96.9% of transportation cases, the single video at issue did not depict a minor under the age of 12. See U.S. Sentencing Comm’n, Federal Child Pornography Offenses 209, 266 (2012). Unlike 82.1% of transportation cases, it did not involve sadistic, masochistic, or violent conduct. See

. It did not involve the commercial production, distribution, or sharing of child pornography, and it certainly did not involve 600 or more images. See

at xi

12 have typically treated “personal” distribution of child pornography (e.g.,

individual email or direct communication between two offenders) to adult

offenders as the most serious offense, this case involves unintentional transmission

to a computer system, accessed only by law enforcement. See U.S. Sentencing

Comm’n, Federal Child Pornography Offenses 151‐52 (2012). Even those cases where

only possession is charged and no mandatory minimum is threatened generally

involve these features, but they are absent here. See

at 209 tbl.8‐1.

U.S. Attorney John H. Durham may not have been aware that the Sentencing

Commission has emphasized in no uncertain terms that “the mandatory minimum

penalties for certain child pornography offenses and the resulting guidelines

sentencing ranges may be excessively severe and as a result are being applied

inconsistently,” U.S. Sentencing Comm’n, Mandatory Minimum Penalties for Federal

Sex Offenses 56 (2019). Speaking to this inconsistency, the Commission has

observed that “there is little difference in the underlying conduct of offenders

charged with possession offenses,” which do not carry a mandatory minimum

penalty, “compared to the conduct of offenders charged with receipt offenses,”

which do carry a mandatory minimum.

. As of 2012, 95.3% of offenders

n.57, 125, 209; U.S.S.G. § 2G2.2, Commentary ¶ 6(B)(ii) (2018) (treating a video as equivalent to seventy‐five images).

13 sentenced only for possession had engaged in conduct that would have carried at

least a five‐year mandatory minimum if more severe charges had been brought.

Id. at 14.

Recognizing the harshness of the statutory penalties, federal prosecutors in

this Circuit have generally made reasonable charging decisions, reserving fifteen‐

year mandatory minimum sentences for the worst offenders. Yet in this case, faced

with an offense that would not even have qualified for common sentencing

enhancements if only possession had been charged, prosecutors have chosen to

bring the most severe charges available to them, threatening—for a single video

that was never shared and was later deleted—a mandatory minimum that many

physical sexual abuse offenses do not carry. See id. (explaining that only 52.3% of

physical sexual abuse offenders face a fifteen‐year mandatory minimum sentence);

cf., e.g., Flores v. Barr, No. 17‐3421 (2d Cir. Oct. 17, 2017), ECF No. 100, at 4

(describing a three‐and‐a‐half year sentence for a man who repeatedly sexually

assaulted his seven‐ and eleven‐year‐old step‐grandchildren). Nothing in the

record explains Durham’s choice in this case. Perhaps the Government has good

reasons for what it did. If so, knowledge of those reasons would certainly assist

me in evaluating the prosecutor’s application for mandamus.

14 III

In any event, the requirements for mandamus have not been met. A writ of

mandamus is intended to confine the court against which mandamus is sought to

the “lawful exercise of its prescribed jurisdiction.” Cheney v. U.S. Dist. Court for

D.C.,

(2004). It is “a drastic and extraordinary remedy reserved

for really extraordinary causes.”

“Mere error, even gross error in a particular

case . . . does not suffice to support issuance of a writ.” In re United States,

(2d Cir. 1984). The Supreme Court has said that it “has never approved the

use of the writ to review an interlocutory procedural order in a criminal case which

did not have the effect of a dismissal.” Will v. United States,

(1967).

It has also said that mandamus “has been invoked successfully where the action

of the trial court totally deprived the Government of its right to initiate a

prosecution and where the court overreached its judicial power to deny the

Government the rightful fruits of a valid conviction.”

at 97‐98 (citations

omitted). Judge Underhill was unquestionably “within his jurisdiction.” This case

is an important one but is not, on any reasonable calculus, extraordinary. And the

majority submerges itself in error correction. The use of mandamus to supervise

15 pretrial proceedings takes this Court on an ill‐advised journey down the wrong

road.

A petitioner seeking mandamus must establish that (1) there are “no other

adequate means to attain the [desired] relief,” (2) the “right to issuance of the writ

is clear and indisputable,” and (3) “the writ is appropriate under the

circumstances.” Cheney, 542 U.S. at 380‐81. This test has not been satisfied.

Adequate Alternative for Relief

The majority and I interpret what Judge Underhill decided differently. The

majority concludes that “there can be no doubt that the district court granted

defense counsel’s request to argue jury nullification at trial, and that such a ruling

was not contingent on later evidentiary rulings of this court.” Majority Op. at 12.

That assertion is inconsistent with my reading of the record. What Judge Underhill

said is that “[i]f I, under certain circumstances, can admit evidence of the

mandatory minimum, if that evidence comes in as a matter of trial evidence, he is

permitted to argue from that to the jury, period.” Doc. No. 62, at 6‐7 (emphasis

added). Judge Underhill’s amicus brief explains that “the District Court was clear

that it will permit [jury nullification] argument[s] only if evidence of the

mandatory minimums is found admissible at trial.” Underhill Amicus Br. at 14.

16 Judge Underhill has not allowed Manzano to argue unqualifiedly for jury

nullification.

What the District Court has done is decline to preclude Manzano from

attempting to do so in the event that he is later able to lay the proper foundation

for introducing evidence of the mandatory minimums. Mandamus is not available

to review this ruling because it was a conditional ruling which does “not foreclose”

the relief the Government seeks. Kerr v. U.S. Dist. Court for N. Dist. of Cal.,

(1976). Evidence of mandatory minimum sentences, if and when it is

offered at trial, might not be admissible under the Federal Rules of Evidence.

Defense counsel might fail to lay adequate foundation for this evidence, or the

Government might prevail in its objection to the proffer. If the Government

succeeds in keeping the evidence out, no argument from that evidence, whether

for jury nullification or some other purpose, will be permitted. Even if the evidence

is admitted, the Government might succeed in a later objection in cabining defense

counsel’s closing argument or in preventing nullification arguments altogether

because of what actually happened at trial. At this point, no one knows what may

happen. I do not believe that the minute entry can properly be read in isolation

from Judge Underhill’s explanation of what he intended. Judge Underhill viewed

17 his ruling as contingent, and mandamus is not available when “[i]t is clear that the

district judge . . . does not view his action as being final,” In re Cohn,

(2d Cir. 1969) (per curiam). Prosecutors have no right to appeal potential

evidentiary errors.

But which side has the better of this argument does not matter. Assuming

the majority is correct, the prosecutors are still not entitled to mandamus. The only

reason the majority posits as to why the prosecutors have no adequate alternative

for relief is that, if Manzano is acquitted, Judge Underhill’s evidentiary decisions

will not be appealable. This contention is a nonstarter. The point is not merely that

the prosecutors have an adequate alternative for relief; the point is that they are

not entitled to the relief they want in the first place. Our case law is unambiguous

that the fact that the Government may be unable to appeal is insufficient to warrant

mandamus review. Will is clear as can be on this point: “Nor is the case against

permitting the writ to be used as a substitute for interlocutory appeal made less

compelling by the fact that the Government has no later right to appeal.”

; accord United States v. Sam Goody, Inc.,

(2d Cir. 1982); United

States v. Margiotta,

, 134 n.8 (2d Cir. 1981); United States v. Weinstein,

18

(2d Cir. 1975); see also United States v. Coonan,

(2d Cir. 1988) (Altimari, J., dissenting).

We are dealing with an evidentiary ruling in a context in which Congress

has spoken. Mandamus should not be employed to amend statutes.

limits appeals by the Government from evidentiary decisions in criminal

cases to appeals “from a decision or order of a district court suppressing or

excluding evidence . . . if the United States attorney certifies to the district court

that the appeal is not taken for purpose of delay and that the evidence is a

substantial proof of a fact material in the proceeding.” The statute does not allow

appeals from orders admitting evidence, deferring ruling on motions, or setting

bounds on closing arguments. “Congress clearly contemplated when it placed

drastic limits upon the Government’s right of review in criminal cases that it

would be completely unable to secure review of some orders having a substantial

effect on its ability to secure criminal convictions.” Will,

n.5.

Mandamus, the Supreme Court has cautioned, “may never be employed as a

substitute for appeal in derogation of these clear policies.”

. Our Court has

further emphasized that “[u]se of the writ as a substitute for appeal or as a means

19 of circumventing the Criminal Appeals Act [

] is barred.” Weinstein,

.

The fact that some appellate judges might be firmly convinced that trial

court decisions are wrong is of no moment. “Certainly, Congress knew that some

interlocutory orders might be erroneous when it chose to make them

nonreviewable.” Will,

n.6. The majority’s reasoning, with respect,

contains no analytic limitation on the types of pretrial rulings on arguments or trial

management issues that can or cannot be the subject of mandamus or that can or

cannot reach this Court on interlocutory appeal. The majority’s approach, in other

words, is entirely ad hoc. And ad hoc jurisprudence generates chaos.

No Clear and Indisputable Right

Moreover, the Government is not entitled to mandamus because its right to

the writ is not “clear and indisputable,” something the Government concedes

twice. See Pet. at 27 (“[T]his Court has not expressly held that a defendant may not

argue for nullification . . . .”); Reply at 12 (“As the government acknowledged in

its petition, there is no case from this Court expressly addressing the precise

situation here.”). No decision of this Court has even addressed, let alone clearly

and indisputably decided, whether, given what the prosecutors below are doing,

20 a district court has the discretion to permit defense counsel to make arguments of

some sort or another that raise nullification.

The majority attempts to sidestep this failure by arguing that this

requirement can be dispensed with so long as “we are firmly convinced that the

district court’s view of the law was incorrect.” Majority Op. at 15. There are

significant problems with this approach. It reads the “clear and indisputable”

requirement out of the test. That I am “firmly convinced” an error has occurred

simply means that I believe I am correct. Someone’s firm conviction, however

strong or sincere, is not (and can never be) the same thing as a “clear and

indisputable right.” After all, a great many evidentiary or procedural rulings made

during the course of a trial can leave an impression with one or another appellate

judge that the ruling was incorrect. If a “firm belief’ that error has occurred were

sufficient, no justiciable standard for mandamus would, or could ever, exist.3

Our jurisdiction as prescribed in

entitles litigants to appeal

to this court from “final decisions.” A limited number of exceptions are set forth

3The majority claims that the “firm conviction” standard is routinely applied, noting its similarity to the clear error standard used in reviewing district courts’ findings of fact. However, although a “firm conviction” may be enough to show that an error was clear, it does not establish that the matter is indisputable or that a writ of mandamus should issue. I may be firmly convinced of a proposition while acknowledging that it is subject to dispute, and mandamus is an inappropriate remedy in such a situation.

21 in § 1292 and in

for criminal appeals. On the one hand, these

provisions cut off most interlocutory appeals. On the other, they ensure that courts

of appeals function in the way Congress intended. The fact that the term “final

decisions” is generally very well understood is an important source of fairness and

predictability in appellate procedure. Only a narrow class of decisions can trigger

interlocutory appeals. Litigants and jurists, therefore, know which matters can and

cannot get before a court of appeals and how to get them there. The majority’s ad

hoc approach does violence to this understanding because it makes the availability

of interlocutory appeals unknowable in advance and essentially dependent on

random considerations such as the preferences of panel members.

In the absence of controlling precedent, the majority relies on United States

v. Thomas,

(2d Cir. 1997). The majority claims that Thomas addressed

“a court’s knowing failure to remove a juror who is intent on nullification.”

Majority Op. at 17. However, in Thomas, we vacated several convictions because,

desirous of preventing nullification, the district court had removed a deliberating

juror who simply found the Government’s evidence insufficient. Far from

sounding an alarm about the dangers of nullification, Thomas warned against too

probing an inquiry into whether deliberating jurors intend to nullify, for fear that

22 this inquiry would “permit judicial interference with, if not usurpation of, the fact‐

finding role of the jury.”

.

More pointedly, the entire discussion of jury nullification upon which the

majority now relies was unnecessary to the ultimate holding in Thomas and was,

therefore, dicta that cannot support or justify mandamus relief. Only holdings

create “established law”; language that is unnecessary to those holdings does not.

See Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta,

, 1282 (2006) (“If a rule was declared only in dictum, the question remains

undecided.”). The holding of Thomas was that a district judge may properly

remove for cause a juror who refuses to follow the law only if the record leaves no

doubt that the juror would engage in nullification.

. The

question whether a district court has the discretion, in an appropriate case, to

permit a defense lawyer to discuss jury nullification was not before the Court, was

not decided by the Court, and, as noted, remains an open question in this Circuit.4

In addition to being an open question, it is a difficult and nuanced one.

Closing arguments of defense counsel have long been recognized as a

4The majority also invokes Shannon,

(1994), Polouizzi,

(2d Cir. 2009), and Pabon‐Cruz,

(2d Cir. 2004). Nothing in the holding of any of these cases speaks to appropriate limitations on a defendant’s summation. Each addresses whether a judge may inform the jury of sentencing consequences or encourage nullification in the court’s charge.

23 fundamental aspect of a fair trial, and a judge presiding over trial “must be and is

given great latitude” over the scope of summations. Herring v. New York,

(1975). Appellate courts are not well‐suited, particularly on truncated

records involving ongoing proceedings, to ensure that a trial is fair.

Writ Inappropriate Under the Circumstances

Finally, the writ is not appropriate under the circumstances of this case.

Judge Underhill was confronted with a charging decision by the prosecutors that

prima facie indicated serious overreach and foreshadowed a miscarriage of justice.

At each step, he gave thoughtful consideration to the issues raised, the relevant

precedent, and the magnitude of the stakes involved, not just as they impacted the

prosecutors but also as they impacted a man about to be sentenced (by the

prosecutors) to fifteen years of incarceration. Consistent with Thomas, he

empaneled only jurors who could follow the law. Consistent with Shannon,

Polouizzi, and Pabon‐Cruz, he made unmistakably clear his intention to instruct the

jury that they must not consider punishment in determining guilt. Given the gross

uncertainty that exists at the intersection between prima facie prosecutorial

overreach and arguments that might sound in nullification, Judge Underhill

24 walked a fine line. Jurists might agree or disagree with what he did, but there was

no abuse of discretion and certainly none that was clear and indisputable.

I would deny the petition in its entirety.

25