Argued: June 20, 2013
Appeal from a May 10, 2012 judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge), after a jury trial, convicting Elizabeth Moran-Toala of conspiracy to exceed authorized access to a government computer in furtherance of a narcotics conspiracy in violation of 18 U.S.C. §§ 371 and 1030(c)(2)(B)(ii). The jury acquitted her of narcotics conspiracy charges, however, after the district court instructed the jury in effect that it was permitted to return inconsistent verdicts. We conclude that this instruction was erroneous and that the error was not harmless.
PATRICIA E. NOTOPOULOS (Jo Ann M. Navickas, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
FLORIAN MIEDEL, Law Office of Florian Miedel, New York, NY, for Defendant-Appellant.
Before: CALABRESI, CABRANES, and SACK, Circuit Judges.
SACK, Circuit Judge
Although juries are supposed to render verdicts that are consistent with one another, from time to time they do not. When this happens, it is well established that a criminal defendant cannot exploit any such inconsistency in the jury's verdicts to secure a new trial. This appeal presents not a direct challenge to inconsistent verdicts, but instead a related question: whether the district court erred when it instructed the jury in effect that it was permissible to render inconsistent verdicts, and whether, in light of that instruction, the jury verdicts and judgment based thereon can stand.
From February 2003 to October 2007, Defendant Moran-Toala was employed as a Federal Customs and Border Patrol ("CBP") officer at Hollywood International Airport in Fort Lauderdale, Florida. She worked in a "Passenger Analytical Unit, " which required her to review flight manifests to identify airline passengers who were suspected of involvement in criminal activity. In order to do so, Moran-Toala cross-checked names in a database known as the Treasury Enforcement Communications System ("TECS"), which collects information from thousands of databases, including those containing flight and travel information, border crossings, reports of seizures of contraband, criminal history information, outstanding warrants, and motor vehicle records. CBP officers are prohibited from "browsing" the TECS database for personal reasons or for information otherwise unrelated to official business, and they must complete various privacy awareness training courses in order to understand these obligations.
The Eastern District of New York Conspiracy
In 2005, Immigration and Customs Enforcement agents began investigating a suspected narcotics conspiracy involving Jorge Espinal, a Delta Airlines baggage handler at New York's John F. Kennedy Airport. Law enforcement agents obtained a judicially-authorized wiretap on Espinal's phone, which disclosed that Espinal was working with a New York-based narcotics distributor named Henry Polanco. Espinal told Polanco that because he was a luggage-ramp supervisor, he could intercept shipments of narcotics from Delta planes arriving at the airport, and that such shipments would not be screened on arrival by CBP agents. Polanco arranged for a supplier in the Dominican Republic to hide packages containing cocaine, heroin, and ecstasy on many Delta flights that traveled directly from Santiago, in the Dominican Republic, to New York. CBP agents ultimately seized six of Polanco and Espinal's shipments, two of which are pertinent to Moran-Toala's case.
First, Espinal and Polanco arranged for a backpack containing heroin and cocaine to be stashed on a February 11, 2006 Delta flight from the Dominican Republic to New York. CBP agents seized the backpack before Espinal could retrieve it. Espinal did not immediately realize that the shipment had been intercepted. He told Polanco, wrongly as it turned out, that the bag had been placed on the international baggage carousel, and then in unclaimed baggage, but that he, Espinal, was trying to get it back.
The Dominican supplier became concerned about Espinal's failure to retrieve the backpack, suspecting that Espinal and Polanco had stolen the drugs. The supplier demanded that Espinal and Polanco return the shipment or pay him for the loss. To prove to the Dominican supplier that they had not stolen the drugs, Espinal said that "his girlfriend worked for the government and that she had access to [seizure of contraband] information, " so "he was going to tell her to get the information of the seizure to prove . . . that the seizure was real." Trial Transcript ("Trial Tr.") at 248:17-249:5; Joint App'x at 329-30. On February 14, 2006, three days after the shipment went missing, Moran-Toala used TECS to access the seizure report for the backpack in question.
Second, as a result of a wiretap, law enforcement agents knew that Espinal and Polanco had arranged for a "mule" named Henry Cabrera to carry a suitcase containing narcotics on an August 24, 2007 Delta flight from the Dominican Republic to JFK Airport. The agents planned to arrest Cabrera as he exited the plane. While they were waiting for the flight to arrive, they saw Espinal attempt to enter a sterile area, apparently to meet Cabrera and take the suitcase before Cabrera reached customs screening. Espinal reported to Polanco that the heavy law enforcement presence prevented him from meeting Cabrera and that he did not know what happened to the suitcase, but Polanco suspected that Espinal had stolen the drugs. Again, Espinal said that he would contact his girlfriend to confirm that Cabrera had been arrested as he deplaned, as proof that the drugs were seized by law enforcement, and not stolen.
On August 29, 2007, Moran-Toala again used TECS to access Cabrera's arrest report. According to her telephone records, on the morning of August 30, 2007, Moran-Toala placed a telephone call to the phone located at Espinal's work station at JFK Airport.
In addition, Espinal had an associate named Victor Perez who smuggled money to the Dominican Republic at Espinal's behest. Perez was planning to fly to the Dominican Republic for that purpose, but was afraid that there might be an unrelated outstanding warrant for his arrest issued as a result of his failure to pay child support, which might pose a problem for him during reentry into the United States. On or about August 29, 2007, Espinal told Perez that he had a "lady friend" who could check to see whether Perez had any outstanding warrants. Trial Tr. at 486:18; Joint App'x at 566. Perez gave Espinal his date of birth and social security number. On September 1, 2007, Moran-Toala conducted a TECS search using Perez's personal information. The search did not unearth any outstanding warrants or criminal history information. Moran-Toala's phone records reflect two outgoing calls to Espinal on that day. A few days later, Espinal told Perez that it was safe for him to travel.
Moran-Toala was indicted in the United States District Court for the Eastern District of New York on February 19, 2008, in connection with these events. In a superseding indictment filed on April 2, 2009, she was charged, in Count One, with conspiracy to import more than one kilogram of heroin and more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 960, 963; and, in Count Two, with conspiracy to use a government computer unlawfully, in violation of 18 U.S.C. §§ 1030(a)(2)(B), 1030(c)(2)(B)(ii). Unlawful use of a computer is a misdemeanor offense, but is subject to a felony enhancement if "the offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States." 18 U.S.C. § 1030(c)(2)(B)(ii). The Southern District of Florida Conspiracy While the New York conspiracy case was pending, Moran-Toala was indicted in the Southern District of Florida for her alleged involvement in a separate heroin importation and distribution conspiracy with her sister and brother-in-law, officers of the CBP and Transportation Security Administration, respectively. On April 16, 2010, she pleaded guilty to the Florida narcotics conspiracy charges. In her signed, written plea allocution, Moran-Toala admitted that she used the TECS system to run travel checks for drug couriers flying out of Fort Lauderdale to help ensure safe delivery of the drugs. She also admitted that when a shipment of narcotics was seized in April 2007, she used TECS to access the seizure report to prove to her supplier that the product was seized and not stolen. Moran-Toala was sentenced to a term of 120 months' imprisonment for the Florida conspiracy.
Trial in the Eastern District of New York
Back in the Eastern District of New York, on June 21, 2011, Moran-Toala proceeded to trial before a jury on both counts of the superseding indictment. She admitted to misusing her CBP computer, but asserted that she did so with no knowledge of Espinal ...