Rickey Johnson was convicted in the Southern District of New York for posting videos and sending private messages on Instagram in early 2021 that threatened the lives of Fox News hosts Greg Gutfeld and Laura Ingraham, as well as Senator Joe Manchin and Representative Lauren Boebert. The government charged him with making threatening interstate communications and threatening United States officials. During the five-day trial, the district court dismissed three jurors: one due to a medical emergency, one due to lack of childcare, and one due to bias after he made inflammatory historical comments and became agitated when questioned. This reduced the jury to eleven members before deliberations began without a stipulation from the parties. The trial also featured testimony from a Capitol Police agent and the admission of an email from Gutfeld to corporate security reporting the threat. The jury returned guilty verdicts on three counts and a not guilty verdict on one count. Johnson appealed, arguing that five specific errors by the district court required vacating his convictions.
The Second Circuit addressed five arguments raised by Johnson. First, regarding the eleven-member jury, the court acknowledged that the district court violated Federal Rule of Criminal Procedure 23(b) by proceeding without a stipulation before deliberation. However, the court clarified that the right to a twelve-member jury is not a constitutional right under Supreme Court precedent, meaning a violation of the rule is not a structural error. Instead, it is subject to harmless error review. The court found the error harmless because the evidence of Johnson's explicit death threats was overwhelming, and the presence of a twelfth juror would not have changed the outcome. Second, the court found no abuse of discretion in dismissing the two jurors. The dismissal of the alternate was justified by the delay caused by her medical emergency, and the dismissal of Juror No. 2 was justified by his demonstrated bias against the prosecution. Third, the court upheld the admission of Gutfeld's email. It qualified as an excited utterance because Gutfeld was still under the stress of the startling event when he sent it. Furthermore, it was admitted not for the truth of the matter asserted but to show Gutfeld's state of mind, which does not implicate the Confrontation Clause. Fourth, the court ruled that the district court correctly instructed the jury that no adverse inference should be drawn from the absence of the victims as witnesses. Since both sides had an equal opportunity to call the victims and chose not to, the instruction was a proper exercise of discretion to avoid jury speculation. Finally, the court affirmed the admission of the agent's testimony as lay opinion rather than expert testimony. The agent's conclusions about the seriousness of the threats were based on his investigation and reasoning processes familiar to everyday life, not specialized knowledge, and were necessary to rebut the defense's argument regarding law enforcement's motivation.
Johnson's criminal judgment stands, and he remains subject to his sentence of twenty-four months of imprisonment on each count, to run concurrently, followed by three years of supervised release. The decision clarifies that violations of Rule 23(b) regarding jury size are subject to harmless error analysis rather than automatic reversal, reinforcing that the constitutional right to a twelve-member jury was abrogated by Williams v. Florida. It also solidifies the admissibility of victim communications as evidence of state of mind and confirms the propriety of no-inference jury instructions when witnesses are equally available to both parties.
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