20-530

United States v. Godiksen

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 

32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE 

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE 

A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 10th day of February, two thousand twenty-one.

PRESENT:

DENNIS JACOBS,

RICHARD J. SULLIVAN,

STEVEN J. MENASHI,

Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 20-530

JAMES ERIK GODIKSEN,

Defendant-Appellant.

_____________________________________
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For Appellant: TRACY HAYES, Assistant Federal 

Defender, for Terence S. Ward, Federal 

Defender, New Haven, CT.

For Appellee: RAHUL KALE (Marc H. Silverman, on 

the brief), Assistant United States 

Attorneys, for John H. Durham, United 

States Attorney for the District of 

Connecticut, New Haven, CT.

Appeal from the United States District Court for the District of Connecticut

(Vanessa L. Bryant, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED.

Defendant-Appellant James Erik Godiksen appeals a February 6, 2020 

judgment of conviction, entered after a jury trial, for one count of murder-for-hire 

in violation of 18 U.S.C. § 1958. The district court (Bryant, J.) principally 

sentenced Godiksen to 120 months’ imprisonment. On appeal, Godiksen 

challenges the denial of his motions for a judgment of acquittal and for a new trial, 

and argues that the district court made several legal errors, each requiring reversal. 

We assume the parties’ familiarity with the underlying facts, procedural history, 
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and issues on appeal.

I. Sufficiency of the evidence

Godiksen challenges the sufficiency of the evidence underlying his 

conviction in two respects. First, Godiksen argues that the government failed to 

prove that he had the specific intent to murder his ex-wife when he used a facility 

of interstate commerce – his cell phone – as required under the statute. Second, 

Godiksen contends that there was insufficient evidence that, in exchange for his 

ex-wife’s murder, he gave or promised something of pecuniary value to the 

purported hitman, who was actually an undercover agent. Both arguments lack 

merit. 

This Court “review[s] de novo the sufficiency of evidence and the district 

court’s denial of a Rule 29 motion for judgment of acquittal.” United States v.

Bramer, 956 F.3d 91, 96 (2d Cir. 2020). “A defendant challenging the sufficiency 

of the evidence bears a heavy burden because a reviewing court must consider the 

evidence in the light most favorable to the prosecution and uphold the conviction 

if any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Id. (internal quotation marks omitted).

Sufficient evidence supports the jury’s conclusion that Godiksen intended 
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for his ex-wife to be murdered when he used his cell phone to speak with the 

undercover agent. The government’s theory at trial – that Godiksen ordered the 

hit on his wife because she wronged him, including financially, in their divorce –

was not contrary to the evidence. While Godiksen could, and did, argue that he 

in fact retained certain assets, including title to his Corvette and his dog, there was 

ample evidence, including Godiksen’s own words, from which the jury could 

conclude that his actions were motivated by his perception that the divorce

settlement was lopsided.

Nor was the jury required to accept Godiksen’s assertion that he was 

intoxicated or suffering from alcohol-related deficits that prevented him from 

forming the requisite intent for the murder-for-hire. To the contrary, the jury 

heard testimony from government agents that Godiksen was not intoxicated

during the investigation, and even Godiksen’s own expert, Dr. Madelon 

Baranoski, acknowledged that Godiksen’s alcohol-related deficits did not prevent 

him from being able to formulate a plan to commit a crime if desired. This 

testimony, coupled with the recordings of Godiksen arranging for the murder of 

his ex-wife, was more than sufficient to establish his intent to commit murder-forhire. 
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Godiksen fares no better with his contention that the evidence was 

insufficient to show pecuniary consideration. As relevant to § 1958, the promise 

of “an unspecified favor,” such as “[a]nything [the hired killer] need[s],” cannot 

support a finding of pecuniary value, unless the record contains some evidence 

that the parties understood the form the favor would actually take. United States 

v. Babilonia, 854 F.3d 163, 175 (2d Cir. 2017) (first alteration in original) (internal 

quotation marks omitted). But the record need only be sufficient for the jury to 

reasonably find that the parties agreed “that the murder would be carried out in 

exchange for financial compensation” like “money.” Id. at 176 (explaining that 

the jury need not “divine the precise nature of th[e] consideration”).

The evidence at trial included recordings of Godiksen agreeing to pay the 

undercover agent $5,000 in exchange for the murder. That figure may have first 

been suggested by the agent, but Godiksen expressly agreed to the $5,000 as “fine” 

and “fair,” Gov’t App’x at 221, and the agent repeatedly confirmed, without 

objection from Godiksen, that the murder would be committed in exchange for 

cash. As a result, there was ample evidence from which the jury could find that 

Godiksen “specifically intended that [the undercover agent] would be paid in 

exchange for committing the murder.” Babilonia, 854 F.3d at 177. That he had 
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not yet taken steps to withdraw the promised payment from his account is of no 

moment.

II. Jury instructions

Godiksen next challenges two supplemental jury instructions given at trial. 

First, he argues that the district court impermissibly lowered the government’s 

burden of proof on intent, because the court incorrectly instructed the jury on the 

definition of general, not specific, intent. Second, he contends that the district 

court conflated mental incapacitation and diminished capacity, confusing the jury. 

Because Godiksen did not object to either instruction at trial, we review for plain 

error. United States v. Miller, 116 F.3d 641, 672 (2d Cir. 1997). 

It was not plain error for the district court to issue its supplemental 

instruction in response to a jury note requesting the “dictionary definition” of 

intent. Although the district court ultimately gave – without objection – an 

instruction on general intent from this Court’s opinion in United States v. Bell, 584 

F.3d 478, 484 (2d Cir. 2009), the instruction was provided in addition to, not in lieu 

of, earlier instructions about specific intent. Those original instructions expressly 

provided that the government was required to prove that Godiksen used an 

interstate facility “with the intent to further or facilitate the commission of 
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murder,” thus requiring the jury “to look into the defendant’s mind and determine 

the defendant’s purpose in using interstate facilities and in his communications 

with” the undercover agent. Gov’t App’x at 196. In context, we see little room 

for confusion, particularly since the jury returned a special interrogatory that 

required it to “unanimously find that the [g]overnment has proved beyond a 

reasonable doubt that the aforementioned travel or use of the interstate facility 

was done with the intent that a murder be committed in violation of the laws of 

any State of the United States.” J. App’x at 75. 

Godiksen’s challenge to the district court’s supplemental instruction on 

diminished capacity is equally unpersuasive. Although it is true that the district 

court did, at one point, use the term “mentally incapacitated” rather than 

“diminished capacity,” that brief slip did not render the instruction misleading 

when considered in context. Significantly, the instruction correctly referred to 

“diminished capacity” until the very end of the instruction, and in any event, the 

record is clear that Godiksen never attempted to argue a defense of complete 

incapacity or insanity. See No. 3:16-cr-178-VLB, Doc. No. 148 at 5 (defense 

counsel disclaiming the insanity defense and explaining its diminished capacity 

defense). Under these circumstances, Godiksen cannot prove plain error that 
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affected his substantial rights. 

III. Jury request for playback or readback of testimony

Next, Godiksen argues that the district court denied him a fair trial by 

improperly responding to a jury note requesting a playback of Dr. Baranoski’s 

cross-examination and “rebuttal.” He contends that the district court erred when 

it failed to read the note into the record, neglected to solicit the parties’ responses 

on the proper course of action, and communicated orally with the jury in open 

court. Although we agree that the district court erred in conducting an open 

dialogue with the jury, we find that the error ultimately was harmless. 

We have previously articulated a four-step “procedure that a trial judge 

should normally follow in responding to an inquiry from a jury during the course 

of jury deliberations.” United States v. Ulloa, 882 F.2d 41, 42 (2d Cir. 1989). Those 

steps – referred to as the Ronder procedure – require that (1) the jury’s questions 

be submitted in writing; (2) the court mark the question as a court exhibit and read 

it into the record; (3) the court afford counsel an opportunity to suggest 

appropriate responses; and (4) the question, if substantive, be read into the record 

in the jury’s presence once the jurors are recalled. Id. at 45 (citing United States v. 

Ronder, 639 F.2d 931, 934 (2d Cir. 1981)). 
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Nevertheless, we are “[m]indful that trial judges must be permitted some 

latitude in determining how best to handle jury inquiries.” Id. We have thus 

“accepted substantial compliance with the Ronder procedure,” examining whether 

the defendant has suffered prejudice as a prerequisite for reversal. Id.; see also 

United States v. Leung, 40 F.3d 577, 584 (2d Cir. 1994) (applying harmless error 

analysis to court’s failure to convey in advance to counsel jury’s request for certain 

transcripts); United States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994) (“[N]oncompliance

with this procedure does not mandate reversal unless prejudice is shown.”). 

When a jury requests to read or hear trial testimony again, “a court’s 

response to a jury request for a readback should balance the jurors’ need to review 

the evidence before reaching their verdict against the difficulty involved in 

locating the testimony to be read back, the possibility of undue emphasis on a 

particular portion of testimony read out of context, and the possibility of undue 

delay in the trial.” United States v. Criollo, 962 F.2d 241, 243 (2d Cir. 1992). The 

decision of whether to play back requested testimony “is within the court’s broad 

discretion.” Id. 

Here, the district court undoubtedly failed to adhere to the Ronder 

procedure when it did not read the jury’s note into the record or solicit responses 
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from counsel; the district court then compounded the problem when it engaged in 

oral colloquies with the jury. But Godiksen fails to show that this caused him any 

prejudice. To the contrary, the district court made clear to the jury that the 

redirect was available and asked several times whether the jury was “certain” and 

“absolutely certain” that it did not want to hear the redirect. Gov’t App’x at 205.

The jury repeatedly confirmed, including in writing, that it did not. Since the 

decision to not play back the requested testimony ultimately fell within the district 

court’s broad discretion, Godiksen cannot show prejudice from the district court’s 

departure from Ronder. See United States v. Holmes, 863 F.2d 4, 6 (2d Cir. 1988). 

IV. Prosecutorial misconduct

Godiksen further contends that certain of the government’s statements in its 

summation and rebuttal summation constituted prosecutorial misconduct that 

prejudiced Godiksen. We disagree. 

“[A] defendant who seeks to overturn his conviction based on alleged 

prosecutorial misconduct in summation bears a heavy burden,” as “[h]e must 

show more than that a particular summation comment was improper.” United

States v. Farhane, 634 F.3d 127, 167 (2d Cir. 2011) (internal quotation marks 

omitted). “The law has long recognized that summations” and rebuttal 
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summations “are not detached expositions,” so “courts will not lightly infer that 

every remark is intended to carry its most dangerous meaning.” Id. (internal 

quotation marks omitted). 

To prevail in requesting a new trial because of summation misconduct, the 

defendant must show that the alleged misconduct, “when viewed against the 

entire argument to the jury, and in the context of the entire trial, was so severe and 

significant as to have substantially prejudiced him, depriving him of a fair 

trial.” Id. (internal citations and quotation marks omitted); see United States v.

Rodriguez, 968 F.2d 130, 142 (2d Cir.1992) (noting that only in a “rare case” will 

improper summation comments be “so prejudicial” as to warrant new trial 

(internal quotation marks omitted)). “In assessing whether a defendant has been 

substantially prejudiced, we consider the severity of the misconduct, the curative 

measures taken, and the certainty of conviction absent the misconduct.” United

States v. Binday, 804 F.3d 558, 586 (2d Cir. 2015) (internal quotation marks 

omitted)). 

A defendant who, like Godiksen, “did not object at trial to the statements 

forming the basis of his appeal” faces an even steeper climb, because we apply 

plain error review. United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012). This 
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plain error standard requires the Court to reject any error that does not “amount 

to flagrant abuse” that “seriously affects the fairness, integrity, or public 

reputation of judicial proceedings,” in addition to causing the defendant 

substantial prejudice. Id. 

Godiksen’s myriad claims of error all fail, largely for the reasons discussed 

by the district court. Godiksen argues that the government disparaged his 

witness by calling Dr. Baranoski a “hired gun” who was “paid to do what 

[Godiksen] wanted, just like the undercover.” Godiksen’s Br. at 48 (quoting

Gov’t App’x at 171). But the government did not discourage the jury from 

considering Dr. Baranoski’s testimony, pointing out that even she, a defense 

witness, confirmed that Godiksen could form the intent to commit a crime. 

Godiksen’s other objections to the summation are largely frivolous and amount, 

at most, to stray remarks that cannot seriously be said to have unfairly prejudiced

Godiksen at trial.

V. New trial

Finally, Godiksen argues that the district court erred in denying his motion 

for a new trial, given the purported errors he raises. We review the district 

court’s exercise of its broad discretion for abuse, see United States v. DiTomasso, 932 
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F.3d 58, 70 (2d Cir. 2019), and find none. 

Under Rule 33, a district court may “grant a new trial [to a defendant] if the 

interest of justice so requires.” Fed. R. Crim. P. 33. “Where testimony is patently 

incredible or defies physical realities, it may be rejected by the court, despite the 

jury’s evaluation.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). 

Nevertheless, “[w]hile we have held that a district court may grant a new trial if 

the evidence does not support the verdict, we have emphasized that such action 

must be done sparingly and in the most extraordinary circumstances.” United

States v. Archer, 977 F.3d 181, 187–88 (2d Cir. 2020) (internal quotation marks 

omitted). 

As noted, any errors in the trial were harmless and not a basis for vacatur. 

Given this, and because the evidence supports the verdict, we affirm the district 

court’s denial of the Rule 33 motion as a wise exercise of its discretion. 

We have considered Godiksen’s remaining arguments and find them to be 

meritless. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court