would be to convict a person who was not guilty and the more careful you must be not to allow your disapproval of the crime to interfere with your assessment of the evidence." (Tr. 426.) These instructions served to focus the jurors on the issues properly before them.
In sum, neither the admission of the child pornography on its own nor the admission of the images considered in the context of the mandated revisions to the jury instructions and the prosecutor's rebuttal remarks come anywhere close to working the "manifest injustice" required to warrant a new trial.
B. Supplemental Jury Instruction
The defense also argues that the Court's supplemental jury instruction was so confusing as to result in an improper verdict. (Def.'s Mem. at 6.)
Notwithstanding the clarity of the evidence, the jury deliberations in this case lasted longer than the presentation of the evidence. After nearly two days, the jury sent out a note asking for clarification of the meaning of the terms "advertisement" or "notice," asking whether "the ad or notice must specifically mention a visual depiction or will any ad or notice suffice?" (Tr. 466; Court Exhibit ("CX") 8.) As discussed above, to be convicted on Count One, Pabon had to knowingly make, produce, or publish an advertisement or notice, and which advertisement or notice had to seek or offer a visual depiction of a minor engaging in sexually explicit conduct whose production involved an actual minor engaging in such conduct.
After conferring with the attorneys and hearing suggested language, the Court shared with counsel the instruction it intended to give. (Tr. 468-69.) Although both the government and the defense had proposed their own suggestions for answering the jury's query, neither side objected to the substance of the instructions as confusing or as misstating the law. (Tr. 470-73.) The Court then re-instructed the jury on the elements of Count One (in terms to which Pabon did not and does not object, either at the charging conference, after the original charge, at the time of the supplemental charge, or in his post-trial motion) and then gave the following supplemental instruction, which was directly responsive to the jurors' query:
Not any kind of advertisement or notice will do. As I
told you before, and as I just reread from the
charge, the defendant had to knowingly make or
publish a specific kind of notice or advertisement.
In order to establish a violation of the statute, the
government must prove beyond a reasonable doubt that
the defendant made or published an advertisement or
notice that sought to exchange, receive or distribute
a visual depiction of the kind I defined for you. No
particular magic words or phrases need to be
included, but there must be proof beyond a reasonable
doubt that the notice or advertisement concerned
visual depictions of the kind I defined for you.
Advertisements or notices, for example, that sought
to exchange or distribute other kinds of material,
such as written descriptions of sexual acts involving
minors or other verbal as opposed to visual
depictions of child pornography would not violate
(Tr. 475-76.) Shortly after this instruction, the jury sent out a note that it was deadlocked on Count One, but while the Court and the parties were discussing how to proceed, the jury sent another note stating that it had reached a unanimous verdict on both counts. The verdict was then announced in open court as the jury's unanimous verdict, and the jury was polled, each juror acknowledging the verdict as his or her own. (Tr. 481.)
Pabon argues that "[t]he timing of the verdict, following so quickly after the instruction suggests that the instruction played a large role in the final verdict," and points to post-trial events to support its claim. (Def.'s Mem. at 7, citing Affirmation of Jennifer Brown, dated Nov. 13, 2002, at ¶ 6.) The Court's findings regarding those events, based on its own observations, are as follows: After the jury announced its verdict and the trial had ended, two jurors returned to the courtroom. The other jurors, the prosecutors, and the Court Reporter had already left. The jurors explained to the Court and defense counsel that they had been confused by the final charge and now felt that they had made a mistake. The two jurors were visibly upset. The Court simply advised the jurors that their verdict was final, that the decisions jurors must make are sometimes painful, and that the jurors should be comforted that if they had acted according to their consciences, they were not responsible for any consequences the defendant faced.
To the extent Pabon relies on the claim that the jurors were subjectively confused, his motion must be rejected. Pabon has not sought (save indirectly, by means of counsel's hearsay affidavit) to offer the jurors' testimony about the state of mind that led them to agree to the guilty verdict. Such testimony would clearly be inadmissible. Rule 606(b) of the Federal Rules of Evidence prohibits jurors from testifying "[as] to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict . . . or concerning the juror's mental processes in connection therewith." The only exception provided by the Rule is that "a juror may testify on the question whether extraneous prejudicial information was improperly brought to he jury's attention or whether any outside influence was improperly brought to bear on any juror." Fed.R.Evid. 606(b). Nothing in Pabon's motion, nor in the Court's observations at the time, gives the slightest indication of any such improper information or influence. As the Court of Appeals pointed out in King v. United States, 576 F.2d 432, 438 (2d Cir. 1978):
There is a judicial reluctance, for sound and easily
understood reasons, "to inquire into the state of
mind of any juror and into the conduct of the jurors
during their deliberations." United States v.
Dioguardi, 492 F.2d 70, 79 (2d Cir. 1974). This is to
avoid harassment of jurors, inhibition of
deliberation in the jury room, a deluge of
post-verdict applications mostly without real merit,
and an increase in opportunities for jury tampering;
it is also to prevent jury verdicts from being made
more uncertain. United States v. Crosby,
294 F.2d 928, 950 (2d Cir. 1961).*fn8
Whether any individual juror felt confused or reluctant, or later decided that he or she had misunderstood some legal point, are all precisely the sort of matters that Rule 606(b) shields from disclosure. Tanner v. United States,