22-1289 

United States v. Johnson

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2022 

No. 22-1289 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

RICKEY JOHNSON, AKA SEALED DEFENDANT 1,

AKA NEIL DAWN DEFARREN, 

Defendant-Appellant.

On Appeal from the United States District Court 

for the Southern District of New York

ARGUED: JUNE 6, 2023 

DECIDED: SEPTEMBER 6, 2024 

Before: CHIN and MENASHI, Circuit Judges, and ENGELMAYER, 

Judge.*

* Judge Paul A. Engelmayer of the United States District Court for the 

Southern District of New York, sitting by designation. 
2 

Defendant Rickey Johnson was convicted of making 

threatening interstate communications and of threatening United 

States officials. He argues that five purported errors over the course 

of the trial require vacatur of his convictions: (1) the district court 

proceeded with eleven jurors prior to deliberations and without 

stipulation from the parties, (2) the district court dismissed two jurors 

for other than “good cause,” (3) an email from one of the victims was 

admitted in violation of the rule against hearsay evidence and in 

violation of the Confrontation Clause, (4) the district court 

erroneously delivered an “uncalled witness charge” prohibiting 

adverse inferences from a lack of testimony, and (5) the district court 

improperly admitted expert testimony as lay testimony. With respect 

to each argument, we conclude either that the district court did not 

err or that the error was harmless. We affirm the judgment of the 

district court.

Judge Chin dissents in a separate opinion. 

COLLEEN P. CASSIDY, Federal Defenders of New York, 

New York, NY, for Defendant-Appellant. 

KYLE A. WIRSHBA, Assistant United States Attorney 

(Patrick R. Moroney, Stephen J. Ritchin, Assistant United 

States Attorneys, on the brief), for Damian Williams, 

United States Attorney for the Southern District of New 

York, New York, NY, for Appellee.

1 MENASHI, Circuit Judge: 

2 In 2021, Defendant-Appellant Rickey Johnson posted videos

3 and sent private messages on Instagram in which he threatened Fox 
3 

1 News hosts Greg Gutfeld and Laura Ingraham, Senator Joe Manchin, 

2 and Representative Lauren Boebert. Given the seriousness of the 

3 threats, Johnson was indicted on four counts. Counts One and Four 

4 charged Johnson with making threatening interstate communications 

5 in violation of 18 U.S.C. §§ 875(c) and 2; Counts Two and Three 

6 charged Johnson with threatening United States officials in violation 

7 of 18 U.S.C. §§ 115(a)(1)(B), (b)(4), and 2. 

8 During the five-day jury trial in February 2022, the district 

9 court dismissed three jurors: Alternate No. 2, Juror No. 7, and Juror 

10 No. 2. The district court dismissed Alternate No. 2 on the second day 

11 of the trial due to a medical emergency. It dismissed Juror No. 7 and 

12 Juror No. 2 on the final day of the trial—just hours before the jury 

13 retired to deliberate—due to a lack of childcare arrangements and a 

14 finding of bias, respectively. The three dismissals reduced the jury to 

15 eleven members. 

16 At trial, the jury did not hear directly from the victims. 

17 However, the jury did hear testimony from others who had contact 

18 with the victims. Special Agent Brandon Kelley, a member of the 

19 Threat Assessment Section of the U.S. Capitol Police, testified that he 

20 examined the threats and contacted the victims to make security 

21 arrangements. The director of corporate security at Fox Corporation, 

22 Clifford Cid, also testified. During Cid’s testimony, the government 

23 offered into evidence an email from Gutfeld to Cid that reported 

24 receiving a death threat from Johnson’s Instagram account. 

25 At the close of the trial, over the objection of the defense and 

26 without stipulation from the parties, the district court permitted the 

27 eleven-member jury to proceed to deliberate. After about one day of 

28 deliberation, the jury returned a guilty verdict on Counts One, Two, 

29 and Four. At the close of the following day, the jury returned a verdict 
4 

1 of not guilty on Count Three. The district court sentenced Johnson to 

2 twenty-four months of imprisonment on each count of conviction—

3 to run concurrently and to be followed by three years of supervised 

4 release—and imposed a mandatory special assessment of $300. 

5 On appeal, Johnson argues that five purported errors by the 

6 district court require vacatur of his convictions: (1) the decision to 

7 proceed to deliberation with eleven jurors, (2) the dismissals of 

8 Alternate No. 2 and Juror No. 2, (3) the admission of Gutfeld’s email 

9 to Cid, (4) the delivery of an “uncalled witness” charge to the jury

10 prohibiting adverse inferences to be drawn from the absence of victim 

11 testimony, and (5) the admission of Kelley’s testimony as lay rather 

12 than expert testimony. With respect to each purported error, we 

13 conclude either that the district court did not err or that the error was 

14 harmless. We affirm the judgment of the district court. 

15 BACKGROUND 

16 I 

17 On the morning of January 30, 2021, Rickey Johnson sent a 

18 series of private messages to Fox News host Greg Gutfeld on 

19 Instagram. The messages were brief but stated unambiguously “you 

20 will be killed.” App’x 566. Gutfeld forwarded these messages by

21 email to Clifford Cid, the director of corporate security at Fox 

22 Corporation, with the subject line “Death threat.” Id. at 29. Gutfeld 

23 added the following note: “Mentions me and Jesse [Watters] and 

24 Katie Pavlich. That is coming thru from his Instagram account to my 

25 Facebook. If you go to his Instagram account which is under his same 

26 name you’ll see that he says he’s in [M]anhattan.” Id. Cid notified the 

27 New York City Police Department (“NYPD”) about the messages. 

28 On February 3, 2021, Johnson posted three videos on his 

29 Instagram account. Each video featured clips from Fox News with 
5 

1 Johnson speaking over the footage. The first video threatened Gutfeld 

2 and Senator Joe Manchin. As the camera zoomed in on Gutfeld 

3 appearing in a segment with other commentators, Johnson stated: 

4 You know how y’all sit and talk about and support the 

5 people who use the Constitution to kill people? I am 

6 going to take your life. I am going to tell you before I do 

7 it, like I am doing right now, but I’m gonna look you in 

8 your fucking eye, and I’m gonna take your fucking life, 

9 and everyone that knows I took your life is gonna know 

10 why.

11 Id. at 576-77. The video then featured a clip of Manchin. As the camera 

12 focused on Manchin, Johnson stated: “He’s dead. He is fucking dead. 

13 He’s a Republican that wants to defund the people.” Id. at 571. 

14 Johnson continued:

15 Joe Manchin will be executed. He can stop the American 

16 people’s money. I don’t give a fuck about all this politics. 

17 That bitch is on American soil. 450,000 Americans, on 

18 American soil. I wanna know who’s who. We gonna see 

19 how these motherfuckers out here vote. I’m killing their 

20 ass. You think I’m joking. And you gonna know I fucking 

21 did it.

22 Id. at 574. In the caption of the video, Johnson tagged Manchin’s 

23 official Instagram account and wrote “bitch, you are a terrorist, and 

24 will be held accountable for your treason.” Supp. App’x 1. 

25 Johnson made similar threats against Fox News host Laura 

26 Ingraham and Representative Lauren Boebert in the two other videos 

27 he posted on February 3. Over footage of Ingraham speaking, Johnson 

28 said: 

29 Laura, you should stop but you’re not because you’re 

30 paid to kill people. Laura Ingraham, you will be killed. I 
6 

1 want you dead. You are a racist, domestic terrorist. ... I 

2 want this white woman dead. I want Laura Ingraham 

3 dead. I want Laura Ingraham murdered. Shout-out 

4 Washington, D.C. I’m gonna kill you, Laura 

5 Ingraham. ... Laura Ingraham, I am going to personally

6 kill you. No, we’re targeting on you. I am going to kill 

7 you. 

8 App’x 581-85. Over footage of Boebert, Johnson said: “You don’t 

9 terrorize me. I’m going to kill you. No no no no no. We kill people 

10 who violate the Constitution. You are a self-proclaimed terrorist to 

11 the American people.” Id. at 579. When in the footage Boebert smiled, 

12 Johnson stated: “Smile, I am going to kill you. You are proud to 

13 terrorize the United States Constitution.” Id. In the caption, Johnson 

14 tagged Boebert’s official Instagram account along with the official 

15 accounts of Governor Ron DeSantis and the U.S. Department of 

16 Justice. 

17 The NYPD, having learned of Johnson’s Instagram account 

18 from Cid, alerted the U.S. Capitol Police. On February 4, 2021, Special 

19 Agent Brandon Kelley of the Threat Assessment Section of the Capitol 

20 Police reviewed the Instagram account. He then contacted the offices 

21 of Manchin and Boebert. Manchin’s office requested that security 

22 patrols be stationed outside the senator’s residence in West Virginia, 

23 and Kelley arranged the patrols. Kelley also informed Boebert’s chief 

24 of staff about a “possible threat.” Id. at 208-09. Kelley requested 

25 Boebert’s schedule in order to provide extra security in Washington 

26 and asked if she wanted patrols at her home in Colorado. Boebert did 

27 not request security in Colorado, however, so it was not arranged. The 

28 NYPD arrested Johnson on February 11, 2021. 

29 A superseding indictment filed on January 12, 2022, charged 

30 four counts. Counts One and Four charged Johnson with making 
7 

1 threatening interstate communications—to Gutfeld and Ingraham, 

2 respectively—in violation of 18 U.S.C. §§ 875(c) and 2. Counts Two 

3 and Three charged Johnson with threatening United States officials—

4 Manchin and Boebert, respectively—in violation of 18 U.S.C. 

5 §§ 115(a)(1)(B), (b)(4), and 2. 

6 II 

7 The trial began on February 16, 2022. Twelve jurors and two 

8 alternates were selected, and the jury heard opening statements and 

9 testimony from Kelley. The next morning, February 17, one of the 

10 alternate jurors—Alternate No. 2—informed the district court that she 

11 had spent all night in the emergency room due to a swollen lip and 

12 that she would not be able to arrive at the courthouse until the early 

13 afternoon. The defense requested that the district court wait for 

14 Alternate No. 2 to arrive before resuming the trial, and the 

15 government asked for her to be dismissed so the trial could proceed. 

16 The district court decided to dismiss Alternate No. 2 and to proceed. 

17 That same morning, the district court also considered an 

18 incident involving Juror No. 2. Detective David Cowan of the NYPD, 

19 who had been involved in investigating Johnson, informed the 

20 district court of statements that he had heard from Juror No. 2 while 

21 standing outside the courtroom during a recess the day before.

22 According to Cowan, Juror No. 2 had said that “the white man stole 

23 Manhattan from the Native Americans”; “Abraham Lincoln did not 

24 want to free the slaves” but did so “because the northern states had 

25 [an] interest in cheap labor”; “General Sherman and another general 

26 from the Union Army slaughtered the plains Indians” when 

27 constructing the intercontinental railroad; and “the white man killed 

28 the Native Americans who had tobacco farms in the United States” 

29 because of the financial interests of Englishmen in tobacco. Id. at 181. 
8 

1 According to Cowan, Juror No. 2’s statements were initially 

2 addressed to a group including the other jurors, an attorney from Fox 

3 Corporation, and Cowan himself. But as others moved away, Juror 

4 No. 2 directed his commentary toward Cowan. It appeared to Cowan 

5 that Juror No. 2 provided these historical reflections unprompted. 

6 During the same morning, the district court alerted the parties to a 

7 second incident involving Juror No. 2 in which he apparently 

8 “approached ... the lady who brought coffee to the jurors and started 

9 talking to her.” Id. at 167. 

10 The district court asked Juror No. 2 about his statements to 

11 Cowan, and Juror No. 2 denied ever speaking to Cowan and became 

12 indignant. He demanded that the district court identify his “accuser,” 

13 and the district court told Juror No. 2 to “calm down.” Id. at 174. Juror 

14 No. 2 acknowledged speaking to the woman with the coffee, but he 

15 said that he did not discuss the case with her. Id. at 175. 

16 The government urged the district court to excuse Juror No. 2 

17 on the grounds that he was a “disruption” to the other jurors and that 

18 he would be unable to “remain unbiased” because he associated 

19 Cowan—whom he believed had accused him unjustly—with the 

20 prosecution. Id. at 183-84. The district court recognized that Juror 

21 No. 2’s statements “certainly contradict[ed] credible testimony by 

22 Detective Cowan as to whether he talked to Cowan,” but the district 

23 court permitted Juror No. 2 to remain on the jury pending further 

24 consideration. Id. at 189. Later that day, the district court observed 

25 Juror No. 2 asleep during testimony and admonished him. Juror No. 2 

26 responded that “[m]y eyes were opened,” and the district court said, 

27 “Oh, no they weren’t.” Id. at 302. 

28 Also on February 17, during Cid’s testimony, defense counsel 

29 objected to the government’s effort to admit Gutfeld’s email to Cid on 
9 

1 the grounds that the email was hearsay and that its admission 

2 violated the Confrontation Clause. Defense counsel argued that the 

3 government was trying to introduce “inadmissible hearsay by 

4 claiming they are not offering it for its truth when that is what they 

5 want to do” and that Johnson’s “Sixth Amendment right to confront 

6 the witnesses against him would be in violation by having this 

7 witness bring in statements that we believe are testimonial under 

8 Crawford, and Mr. Johnson would not have the ability to cross9 examine this witness.” Id. at 252. After hearing argument from 

10 defense counsel and from the government, the district court decided 

11 that the email was an “excited utterance,” given the “relatively 

12 compressed time frame” between when the Instagram messages were 

sent and when Gutfeld composed it. Id. 259-60. 13 1 The district court 

14 provided a limiting instruction to the jury that the email was “in 

15 evidence solely for you to consider with respect to Mr. Gutfeld’s state 

16 of mind when he received the Instagram post.” App’x 263-64. 

17 The following morning—February 18—the district court 

18 informed the parties that another juror, Juror No. 7, would be 

19 excused. The juror had notified the district court that he was “unlikely 

20 in the next couple of days to be able” to attend the proceedings due 

21 to a lack of childcare arrangements. Id. at 399. Neither party objected, 

22 and Alternate No. 1 replaced Juror No. 7. Twelve jurors remained. 

23 The district court then returned to its consideration of Juror 

24 No. 2. The district court said that it did not believe that the sleeping 

25 incident required further action or that Juror No. 2 was “untruthful 

26 deliberately” when questioned about talking to Cowan. Id. at 400. But 

1 The district court referred to the timing of “the Instagram post,” but it 

meant the Instagram messages that prompted Gutfeld’s email rather than 

the videos that were posted four days later. App’x 260.
10 

1 the district court recognized that Juror No. 2 was “agitated and upset 

2 by the inquiry, which he regarded as the product of an accusation, 

3 and obviously, as the product of an unfair and inaccurate accusation.”

4 Id. The district court decided to excuse Juror No. 2, it explained,

5 because of bias: 

6 It is entirely likely that [Juror No. 2] attributed what he 

7 regards as a false or inaccurate accusation to the 

8 prosecution team. The most obvious target is Detective 

9 Cowan whom he knows is connected to the prosecution 

10 team. But given his level of agitation, and his upset, I 

11 conclude that he is at least impliedly biased against the 

12 prosecution. The chain of events is just such that I infer 

13 that he holds this against the prosecution. He thinks it is 

14 unjust and he holds it against him. Now, accordingly, 

15 this is a circumstance in which the facts support the 

16 presumption of bias, and in any case, my conclusion as 

17 the finder of fact on this is that he is actively biased 

18 against the government in all of the circumstances.

19 Id. at 400-01. 

20 The district court proceeded with eleven jurors without 

21 receiving a stipulation from the parties, explaining that “[u]nder Rule

24, the case can go to the jury with 11 jurors.” Id. at 401.2 22 In response, 

23 the defense moved for a mistrial. The district court denied the motion. 

24 Following a charge conference, the parties delivered closing 

25 arguments, the jury was instructed, and deliberation began. In its 

26 instructions to the jury, the district court told the jury not to draw 

27 adverse inferences from the absence of testimony from the four 

28 targets of Johnson’s threats: 

2 In fact, a case may go to a jury of eleven members under Rule 23(b). See 

Fed. R. Crim. P. 23(b). 
11 

1 Now, there are a number of people whose names you’ve 

2 heard during the course of the trial who did not come 

3 here and testify. I instruct you that both sides had an 

4 equal opportunity or lack of opportunity to call those 

5 people as witnesses. Therefore, you should not draw any 

6 inference or reach any conclusions as to what they would 

7 have said had they been called. Their absence should not 

8 affect your judgment one way or the other. You should, 

9 however, remember my instruction that the defendant is 

10 not obliged in a criminal case to call any witnesses or 

11 produce any evidence.

12 App’x 514. The jury deliberated for two hours on February 22 and 

13 most of February 23. Late in the afternoon of February 23, the jury 

14 returned a verdict of guilty on Counts One, Two, and Four. The jury 

15 returned a verdict of not guilty on Count Three at the end of the day 

16 on February 24. On May 25, 2022, the district court sentenced Johnson 

17 to twenty-four months of imprisonment on each count—to run 

18 concurrently and to be followed by three years of supervised 

19 release—and imposed a $300 mandatory special assessment. On 

20 October 26, 2022, Johnson completed his term of imprisonment and 

21 began his term of supervised release. 

22 DISCUSSION 

23 Johnson identifies five purported errors that, he argues, each 

24 require vacatur of his convictions: (1) the district court’s decision to 

25 proceed with eleven jurors prior to deliberation and without 

26 stipulation from the parties, (2) the dismissal of two jurors for other 

27 than the “good cause” that Federal Rule of Criminal Procedure 23(b) 

28 requires, (3) the admission of Gutfeld’s email in violation of the rule 

29 against hearsay and the Confrontation Clause of the Sixth 

30 Amendment, (4) the delivery of the uncalled witness charge

31 prohibiting adverse inferences to be drawn from the absence of 
12 

1 testimony from the victims, and (5) the improper admission of 

2 Kelley’s testimony regarding the seriousness of the threats. With 

3 respect to each purported error, we conclude either that the district 

4 court did not err or that the error was harmless. We address each 

5 argument in turn.

6 I 

7 Johnson argues that the district court violated Federal Rule of 

8 Criminal Procedure 23(b) when it proceeded with an eleven-member 

9 jury before deliberation over the objection of the defense. In doing so,

10 according to Johnson, the district court committed a structural error 

11 that requires the vacatur of his convictions. We agree with Johnson 

12 that the district court erred in proceeding with an eleven-memberjury 

13 without stipulation from the parties and prior to deliberation. The 

14 error, however, was not structural but subject to harmless error 

15 review. We conclude that the error in this case was harmless and that 

16 vacatur is not required. 

17 A 

18 According to Federal Rule of Criminal Procedure 23(b)(1), a 

19 “jury consists of 12 persons unless this rule provides otherwise.” Fed. 

20 R. Crim. P. 23(b)(1). The rule authorizes a smaller jury if, “before the 

21 verdict,” the parties “stipulate in writing” either that “the jury may 

22 consist of fewer than 12 persons” or that “a jury of fewer than 12 

23 persons may return a verdict if the court finds it necessary to excuse 

24 a juror for good cause after the trial begins.” Id. 23(b)(2). Pursuant to 

25 a 1983 amendment to the rule, the district court “may permit a jury of 

26 11 persons to return a verdict, even without a stipulation by the 

27 parties,” if “[a]fter the jury has retired to deliberate,” the district court 

28 “finds good cause to excuse a juror.” Id. 23(b)(3). 
13 

1 “Rule 23 incorporates the ‘venerable common law tradition’ of 

2 a twelve-member jury while allowing the district court to reduce that 

3 number upon a finding of good cause.” United States v. Ginyard, 444 

4 F.3d 648, 652-53 (D.C. Cir. 2006) (citation omitted) (quoting United 

5 States v. Araujo, 62 F.3d 930, 933 (7th Cir. 1995)). The rule can make 

6 that allowance because the Supreme Court has said that there is no 

7 constitutional right to a twelve-member jury. “[T]he fact that the jury 

8 at common law was composed of precisely 12 is a historical accident, 

9 unnecessary to effect the purposes of the jury system and wholly 

10 without significance ‘except to mystics.’” Williams v. Florida, 399 U.S. 

11 78, 102 (1970) (quoting Duncan v. Louisiana, 391 U.S. 145, 182 (1968) 

12 (Harlan, J., dissenting)). That decision of the Supreme Court left the 

13 issue “to Congress and the States, unrestrained by an interpretation 

14 of the Sixth Amendment that would forever dictate the precise 

15 number that can constitute a jury.” Id. at 103. 

16 We have observed, following the decision in Williams, that “the 

17 absolute right to a jury of twelve that [defendants] possessed prior to 

18 the 1983 amendment of Rule 23(b) is no longer viewed as a 

19 ‘substantial right’ by the Supreme Court.” United States v. Stratton, 779 

20 F.2d 820, 834 (2d Cir. 1985). We therefore have held that the 

21 retroactive application of amended Rule 23(b), allowing conviction by 

22 eleven jurors, did not violate the Ex Post Facto Clause. “Whatever 

23 disadvantage to the defendant may occur from reducing the jury size 

24 from twelve to eleven is of insufficient proportion to give him a 

25 constitutional right to a jury of twelve, and [it] does not affect the 

26 substantial rights of the defendant for Ex Post Facto purposes.” Id. at 

27 835 (citation omitted). 

28 These prior precedents—holding that the right to a twelve29 member jury is neither a constitutional nor even a substantial right—

30 mean that a violation of Rule 23(b)’s twelve-member requirement 
14 

1 cannot amount to a structural error. The general rule is that “[a]ny 

2 error, defect, irregularity, or variance that does not affect substantial 

3 rights must be disregarded.” Fed. R. Crim. P. 52(a). We depart from 

4 this harmless-error analysis only for “a limited class of fundamental 

5 constitutional errors that defy analysis by ‘harmless error’ standards.” 

6 Neder v. United States, 527 U.S. 1, 7 (1999) (emphasis added) (internal 

7 quotation marks omitted). Such fundamental constitutional errors 

8 “are so intrinsically harmful as to require automatic reversal ... 

9 without regard to their effect on the outcome.” Id. “For all other 

10 constitutional errors”—let alone for non-constitutional errors—

11 “reviewing courts must apply Rule 52(a)’s harmless-error analysis 

12 and must disregard errors that are harmless beyond a reasonable 

13 doubt.” Id. (internal quotation marks and alteration omitted). The 

14 Supreme Court has emphasized that “[t]he purpose of the structural 

15 error doctrine is to ensure insistence on certain basic, constitutional 

16 guarantees that should define the framework of any criminal trial.” 

17 Weaver v. Massachusetts, 582 U.S. 286, 294-95 (2017) (emphasis added). 

18 In accordance with the instructions of the Supreme Court, 

19 “[c]ourts have recognized a limited number of structural errors, all 

20 involving the violation of bedrock constitutional rights.” United States 

21 v. Moran-Toala, 726 F.3d 334, 343 (2d Cir. 2013). Such an error 

22 “requires automatic reversal and is not subject to harmless error 

23 analysis because it involves a deprivation of a constitutional 

24 protection so basic that in its absence, ‘a criminal trial cannot reliably 

25 serve its function as a vehicle for determination of guilt or innocence, 

26 and no criminal punishment may be regarded as fundamentally 

27 fair.’” Bentley v. Scully, 41 F.3d 818, 823 n.1 (2d Cir. 1994) (quoting 

28 Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). “The ‘highly 

29 exceptional’ category of structural errors includes, for example, the 

30 ‘denial of counsel of choice, denial of self-representation, denial of a 
15 

1 public trial, and failure to convey to a jury that guilt must be proved 

2 beyond a reasonable doubt.’” Greer v. United States, 593 U.S. 503, 513 

3 (2021) (quoting United States v. Davila, 569 U.S. 597, 611 (2013)). 

4 In the absence of the deprivation of a constitutional right so 

5 fundamental that the trial cannot be trusted to perform its function, 

6 the Supreme Court “has repeatedly made clear” that we must adhere 

7 to “the ‘general rule’ ... that ‘a constitutional error does not 

8 automatically require reversal of a conviction.’” Greer, 593 U.S. at 513 

9 (quoting Fulminante, 499 U.S. at 306). 

10 If the general rule applies to all constitutional errors beyond a 

11 select few at the constitutional “bedrock,” it necessarily applies to 

12 non-constitutional errors that are even further removed from that 

13 foundation. Moran-Toala, 726 F.3d at 343; see also United States v. 

14 Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) (“[G]enerally 

15 speaking structural errors must, at a minimum, be constitutional 

16 errors.”). Because the right to twelve rather than eleven jurors that 

17 Rule 23(b) provides does not implicate the Constitution—at its 

18 bedrock or otherwise—we review a violation of that rule for harmless 

error.3 19 

20 B 

21 We recognize that the Fourth Circuit has held that a district 

22 court’s “decision to excuse the twelfth juror prior to deliberations and 

3 The dissenting opinion objects that Rule 23(b) does not “by its terms” 

provide “a requirement of prejudice.” Post at 20. But no constitutional 

provision or procedural rule expressly provides that it applies only when 

there is prejudice. We nevertheless apply a “strong presumption” that “if 

the defendant had counsel and was tried by an impartial adjudicator ... any 

other errors that may have occurred are subject to harmless-error analysis.” 

Rose v. Clark, 478 U.S. 570, 579 (1986). 
16 

1 absent the defendant’s consent” qualified as a structural error. United 

2 States v. Curbelo, 343 F.3d 273, 285 (4th Cir. 2003). The court said that 

3 it could deem that error to be structural “whether violative of the 

4 Constitution or not.” Id. at 280. We agree with the dissenting opinion, 

5 however, that the Supreme Court and the appellate courts “have 

6 repeatedly made clear that structural errors necessarily must affect a 

defendant’s constitutional rights.” Id. at 289 (Wilkins, J., dissenting).4 7 

8 Johnson argues that a violation of Rule 23(b) should be 

9 considered a structural error because it “affects the very ‘framework 

10 within which the trial proceeds, rather than simply ... the trial process 

11 itself.’” Appellant’s Br. 36 (quoting Neder, 527 U.S. at 8). But the 

12 Supreme Court has told us that convening a jury “composed of 

13 precisely 12” is “unnecessary to effect the purposes of the jury 

14 system” because the number twelve is “wholly without significance.” 

15 Williams, 399 U.S. at 102. Given this precedent, we cannot conclude 

16 that a jury must feature twelve members for the trial to “reliably serve 

17 its function as a vehicle for determination of guilt or innocence” and 

18 to render a judgment that “may be regarded as fundamentally fair.” 

19 Fulminante, 499 U.S. at 310. 

4 Other decisions have required a new trial following a violation of Rule 

23(b) without a showing of prejudice. See United States v. Essex, 734 F.2d 832, 

845 (D.C. Cir. 1984) (“[N]o further prejudice need be shown than that the 

court did not comply with the stipulation and Rule 23(b), and that appellant 

was denied her right to have her case decided by the unanimous verdict of 

the 12 jurors who heard the case.”); United States v. Taylor, 498 F.2d 390, 392 

(6th Cir. 1974) (“[T]he failure of the District Court to comply literally with 

the terms of Rule 23 requires reversal for new trial.”); see also Araujo, 62 F.3d 

at 937; United States v. Tabacca, 924 F.2d 906, 915 (9th Cir. 1991). These 

decisions, however, preceded the Supreme Court’s emphasis that structural 

errors include only “a limited class of fundamental constitutional errors.” 

Neder, 527 U.S. at 7. 
17 

1 In other words, deliberation by eleven rather than twelve jurors 

2 does not alter “the framework within which the trial proceeds” but is 

3 at most “an error in the trial process itself.” Id. Indeed, the district 

4 court in this case dismissed the twelfth juror just before closing 

5 arguments and the start of jury deliberation. Had the district court 

6 waited a few hours—and dismissed the twelfth juror for cause after 

7 the jury had “retired to deliberate”—the district court would not have 

8 violated Rule 23(b). Fed. R. Crim. P. 23(b)(3). That small change in 

9 timing did not implicate the fundamental fairness of the trial 

procedure.5 10 

11 Johnson observes that Rule 23 originally codified the holding 

12 of Patton v. United States, 281 U.S. 276 (1930), that the Sixth 

13 Amendment required twelve jurors unless the defendant waived that 

14 requirement. Reply Br. 6; see Patton, 281 U.S. at 292 (“A constitutional 

15 jury means twelve men as though that number had been specifically 

16 named.”). But the Supreme Court in Williams overruled that holding 

17 of Patton, and Rule 23 has since been amended to allow the district 

18 court to proceed with eleven jurors without the consent of the 

19 defendant after deliberation has begun. When it revised Rule 23(b), 

20 the Advisory Committee explained that “[p]roceeding with the 

21 remaining 11 jurors, though heretofore impermissible under rule 

22 23(b) absent stipulation by the parties and approval of the court, is 

constitutionally permissible” pursuant to the holding of Williams.6 23 

5 We have likewise subjected the erroneous decision of a district court to 

seat an incorrect juror in violation of Federal Rule of Criminal Procedure 

24(c)—in effect, denying the defendant the proper twelfth juror—to 

harmless error review. See, e.g., United States v. Hilts, 757 F. App’x 56, 58 (2d 

Cir. 2018); United States v. Hamed, 259 F. App’x 377, 378-79 (2d Cir. 2008). 

6 Fed. R. Crim. P. 23 advisory committee’s note to 1983 amendment. 
18 

1 Johnson suggests that Williams was wrongly decided. See Reply 

2 Br. 4-5. And there is some support for that position. Justice Gorsuch 

3 has argued that “Williams was wrong the day it was decided, [and] it 

4 remains wrong today.” Khorrami v. Arizona, 143 S. Ct. 22, 23 (2022) 

5 (Gorsuch, J., dissenting from the denial of certiorari); see also 

6 Cunningham v. Florida, 144 S. Ct. 1287, 1287 (2024) (Gorsuch, J., 

7 dissenting from the denial of certiorari) (“In Williams v. Florida, this 

8 Court in 1970 issued a revolutionary decision approving for the first 

9 time the use of 6-member panels in criminal cases. In doing so, the 

10 Court turned its back on the original meaning of the Constitution, 

11 centuries of historical practice, and a battery of this Court’s 

12 precedents.”) (internal quotation marks and citation omitted). Justice 

13 Gorsuch would “reconsider Williams” because the twelve-person 

14 criminal jury was well-established “[b]y the time of the Sixth 

15 Amendment’s adoption,” and “the Sixth Amendment was widely 

16 understood to protect this ancient right.” Khorrami, 143 S. Ct. at 23

(Gorsuch, J.).7 17 

18 Despite these arguments, “there are not yet four votes on [the 

19 Supreme] Court to take up the question whether Williams should be 

20 overruled,” so we remain bound to follow that precedent. 

21 Cunningham, 144 S. Ct. at 1288 (Gorsuch, J.). Accordingly, we must 

22 decline to recognize a new type of structural error that does not affect 

23 a constitutional or even a substantial right. 

7 The dissenting opinion similarly provides historical evidence for the 

proposition that “dispensing” with the requirement of twelve jurors “may 

be considered unconstitutional.” Post at 19 (quoting 2 Joseph Story, 

Commentaries on the Constitution of the United States 588 (1858)).
19 

1 C 

2 We agree with Johnson—and the government does not 

3 dispute—that the district court violated Rule 23(b) when it proceeded 

4 with an eleven-member jury before deliberation without a stipulation 

5 from the parties. We review that violation for harmless error.

6 An “[e]rror is harmless if it is highly probable that it did not 

7 contribute to the verdict.” United States v. Gomez, 617 F.3d 88, 95 (2d 

8 Cir. 2010) (quoting United States v. Kaiser, 609 F.3d 556, 573 (2d Cir. 

9 2010)). We have “repeatedly held that the strength of the 

10 government’s case is the most critical factor in assessing whether 

11 error was harmless.” United States v. McCallum, 584 F.3d 471, 478 (2d 

12 Cir. 2009). 

13 Johnson argues that the erroneous dismissal of the twelfth juror 

14 “[i]n such a close case” cannot be considered harmless. Appellant’s 

15 Br. 38. We disagree that the case was close. At trial, Johnson did not 

16 deny that he posted and sent the threats nor did he dispute that the 

17 other statutory predicates had been met, such as that the 

18 communications were made in interstate commerce. Johnson’s only

19 defense was that he “was not seriously threatening to kill anyone” 

20 and that “[n]o reasonable person would view Mr. Johnson’s 

21 statements as reasonable threats, because they ... were vague and 

22 general.” App’x 454, 459. In our view, the evidence overwhelmingly 

23 showed otherwise. 

24 When it instructed the jury, the district court explained that the 

25 government needed to prove that each statement was “made in such 

26 circumstances that a reasonable person who heard or read the 

27 statement would understand it as a serious expression of an intent to 

28 inflict bodily injury or to kill.” Id. at 498. For Counts One and Four, 

29 the government needed to show that Johnson “intended the 
20 

1 communication to be received as a true threat or that he knew that the 

2 statement would be viewed as a true threat by the person to whom it 

3 was directed.” Id. at 500. For Counts Two and Three, the government 

4 needed to show that Johnson delivered the threat “with the intent to 

5 impede, intimidate, or interfere with the specified officials while they 

6 were engaged in the performance of their official duties or with the 

7 intent to retaliate against the officials on account of the performance 

8 of their official duties.” Id. at 505. The evidence here met those 

9 standards—and would not have allowed a reasonable juror to draw 

10 the contrary conclusion. The jury saw Johnson’s videotaped and 

11 written statements directly. The language was unequivocally 

12 threatening: “I’m gonna look you in your fucking eye, and I’m gonna 

13 take your fucking life,” id. at 576-77; “Joe Manchin will be executed,” 

14 id. at 574; and “Laura Ingraham, you will be killed. I want you dead. 

15 ... I am going to personally kill you. ... I’m going to kill you with my 

16 bare hands,” id. 581-87. Given this direct evidence, the government’s 

17 case was strong. 

18 A reasonable jury could view these statements only as a series 

19 of explicit death threats. Other than the statements themselves, there 

20 was no evidence at trial that indicated Johnson’s state of mind or 

21 intention at the time he transmitted the death threats. The assembled 

22 evidence thus did not provide the jury with a basis on which it could 

23 reasonably have found that Johnson’s intention, in posting the 

24 threats, was not culpable. Cf. Neder, 527 U.S. at 17 (“[W]here a 

25 reviewing court concludes beyond a reasonable doubt that the 

26 omitted element was uncontested and supported by overwhelming 

27 evidence, such that the jury verdict would have been the same absent 

28 the error, the erroneous instruction is properly found to be 

29 harmless.”). 
21 

1 The conduct of the jury did not indicate that there was 

2 significant disagreement over Counts One, Two, and Four. After 

3 delivering a guilty verdict on those counts, the foreperson indicated 

4 that the jurors viewed Counts One, Two, and Four differently than 

5 Count Three, with respect to which she did “not believe [the jury] will 

be able to reach a consensus.” App’x 545. 8 6 One additional juror 

7 participating in the deliberation would not have affected the outcome

8 on the counts that resulted in conviction. 

9 Moreover, Rule 23(b)(3) allowed the district court to proceed to 

10 verdict with eleven jurors “even without a stipulation by the parties” 

11 if it had dismissed the twelfth juror for good cause “[a]fter the jury 

12 has retired to deliberate.” Fed. R. Crim. P. 23(b)(3). Thus, as noted 

13 above, if the dismissal had occurred just a few hours later—after 

14 closing arguments and the jury charge—there would have been no 

15 violation of Rule 23(b) but there still would have been deliberation by 

16 only eleven jurors. That difference in the timing of the dismissal did 

17 not contribute to the verdict. 

18 Because the violation of Rule 23(b) did not affect the outcome 

19 of the trial, there is no reasonable doubt that the error was harmless. 

20 We conclude that the erroneous decision to proceed with eleven 

21 jurors does not warrant vacatur of the judgment of conviction. 

8 Jurors may have seen Count Three differently because Kelley described 

the video contemporaneously to Boebert as only a “possible threat,” and 

Boebert did not take security precautions in response. App’x 118-20, 208-

10. 
22 

1 II 

2 Johnson next argues that the district court’s dismissals of 

3 Alternate No. 2 and Juror No. 2 were not justified by “good cause” 

4 and amounted to an abuse of discretion. We disagree. 

5 Rule 23(b)(2)(B) allows the parties to stipulate that a jury of 

6 fewer than twelve members may return a verdict “if the court finds it 

7 necessary to excuse a juror for good cause after the trial begins.” Fed. 

8 R. Crim. P. 23(b)(2)(B). Johnson argues that—when the district court 

9 excused Alternate No. 2 and Juror No. 2 prior to the start of 

10 deliberation—the district court violated Rule 23(b) not only because 

11 it proceeded without a stipulation but also because “the court’s 

12 dismissal of Juror 2 and Alternate 2 were unjustified by good cause, 

13 and therefore abuses of discretion.” Appellant’s Br. 39. 

14 We agree that the district court violated Rule 23(b) when it 

15 decided—before the jury had retired to deliberate, and without a 

16 stipulation from the parties—that it would permit eleven jurors to 

17 return a verdict. As explained above, however, that error was 

18 harmless. To the extent that the dismissals of Alternate No. 2 and 

19 Juror No. 2 might be considered part of the violation of Rule 23(b), the 

20 error would still be harmless for the same reasons.

21 But the district court did not dismiss Alternate No. 2 and Juror 

22 No. 2 pursuant to a stipulation from the parties that “a jury of fewer 

23 than 12 persons may return a verdict if the court finds it necessary to 

24 excuse a juror for good cause after the trial begins.” Fed. R. Crim. P. 

25 23(b)(2)(B). Accordingly, the dismissals are properly evaluated under 

26 Rule 24(c)(1), which allows the district court “to replace any jurors 

27 who are unable to perform or who are disqualified from performing 

28 their duties.” Id. 24(c)(1). The “district courts have ‘broad discretion 

29 under Rule 24(c) to replace a juror at any time before the jury retires 
23 

1 if there is reasonable cause to do so, and a reviewing court will only 

2 find abuse of that discretion where there is bias or prejudice to the 

3 defendant.’” United States v. Thompson, 528 F.3d 110, 121 (2d Cir. 2008) 

4 (alteration omitted) (quoting United States v. Purdy, 144 F.3d 241, 247 

5 (2d Cir. 1998)). “A juror may be discharged for misleading the court 

6 or when facts are presented which convince the court that a juror’s 

7 ability to perform his duty has become impaired.” United States v. 

Floyd, 496 F.2d 982, 990 (2d Cir. 1974).9 8 

9 As we have explained, Johnson did not suffer prejudice from 

10 the absence of a twelfth juror. And, in any event, we conclude that the 

11 district court did not abuse its discretion in dismissing Alternate No. 2 

12 and Juror No. 2. The three-hour delay that waiting for Alternate No. 2 

13 would have occasioned provided reasonable cause for dismissal. 

14 Alternate No. 2 informed the district court that she had been “up all 

15 night” in the emergency room after her lips had swelled to “10 times” 

16 the normal size, App’x 170, and that she would not be able to reach 

17 the courthouse until “12:30 [pm] or so,” id. at 189. It was not 

18 unreasonable for the district court to be concerned about the ability of 

9 We note that the “reasonable cause” standard under Rule 24(c)(1) does 

not differ significantly from the “good cause” standard under Rule 23(b), 

which “embraces all kinds of problems—temporary as well as those of long 

duration—that may befall a juror,” United States v. Reese, 33 F.3d 166, 173 

(2d Cir. 1994), and which “establishes no bright-line test for determining 

the length of juror unavailability that constitutes good cause for excusal,” 

United States v. Paulino, 445 F.3d 211, 226 (2d Cir. 2006). “All that is needed 

to satisfy a prudent exercise of discretion is to be certain the trial court had 

sufficient information to make an informed decision.” Id. (quoting Reese, 

33 F.3d at 173). “The trial judge has substantial discretion under Rule 23(b) 

to remove a juror after deliberations have commenced where the judge has 

determined that the juror’s ability to perform her duties has been 

impaired,” including the ability “to deliberate as a fair and impartial juror.” 

United States v. Barone, 114 F.3d 1284, 1307 (1st Cir. 1997). 
24 

1 Alternate No. 2 to perform her duties and to want to avoid delay. We 

2 have previously affirmed the dismissal of a juror who was ten 

3 minutes late to court because “we certainly cannot say that the judge 

4 abused his discretion by insisting on going ahead after 10 minutes.” 

5 United States v. Domenech, 476 F.2d 1229, 1232 (2d Cir. 1973). We 

6 cannot say it here either.

7 Johnson argues that the dismissal was an abuse of discretion 

8 because it left only one alternate and because the district court was 

9 simultaneously considering whether to dismiss Juror No. 2. But “no 

10 law ... requires, or even encourages, an appeals court to apply 20/20 

11 hindsight to discretionary jury management decisions by district 

12 judges.” Paulino, 445 F.3d at 226. We agree that the ultimate decision 

13 to proceed to verdict with eleven jurors was erroneous. Yet that does 

14 not mean that every prior decision which led to that point was 

15 necessarily erroneous as well.

16 The district court also did not abuse its discretion in dismissing 

17 Juror No. 2 after finding him to be “actively biased against the 

18 government” because “he attributed what he regards as a false or 

19 inaccurate accusation to the prosecution team.” App’x 400-01. There 

20 is good cause—even under Rule 23(b)—to “dismiss jurors who, 

21 although available and physically capable of serving, are nonetheless 

22 found to be unable to perform their duties properly,” and for that 

23 reason “Rule 23(b) dismissals have been upheld repeatedly in cases 

24 where the trial court found that a juror was no longer capable of 

25 rendering an impartial verdict.” United States v. Thomas, 116 F.3d 606, 

26 613 (2d Cir. 1997). Accordingly, there was surely reasonable cause 

27 under Rule 24(c)(1) to dismiss Juror No. 2 when his statements and 

28 answers to questioning revealed “that the juror in question would not 

29 be able to decide the matter objectively.” United States v. Torres, 128 

30 F.3d 38, 47 (2d Cir. 1997). 
25 

1 III 

2 Johnson further argues that the admission of Gutfeld’s “Death 

3 threat” email as an excited utterance violated the hearsay rule and the 

4 Confrontation Clause. We again disagree. 

5 A 

6 The excited utterance exception to the rule against hearsay 

7 allows the admission of an out-of-court “statement relating to a 

8 startling event or condition, made while the declarant was under the 

9 stress of excitement that it caused.” Fed. R. Evid. 803(2). “The 

10 rationale for this hearsay exception is that the excitement of the event 

11 limits the declarant’s capacity to fabricate a statement and thereby 

12 offers some guarantee of its reliability.” United States v. Tocco, 135 F.3d 

13 116, 127 (2d Cir. 1998). 

14 An excited utterance is not synonymous with a present sense 

15 impression, however. “[W]hile the hearsay exception for present 

16 sense impressions focuses on contemporaneity as the guarantor of 

17 reliability, and requires that the hearsay statement ‘describe or 

18 explain’ the contemporaneous event or condition, the excited 

19 utterance exception is based on the psychological impact of the event 

20 itself, and permits admission of a broader range of hearsay 

21 statements—i.e. those that ‘relate to’ the event.” United States v. Jones, 

22 299 F.3d 103, 112 n.3 (2d Cir. 2002) (citation omitted) (quoting Fed. R. 

23 Evid. 803(1), 803(2)). Therefore, “[a]n excited utterance need not be 

24 contemporaneous with the startling event to be admissible under 

25 Rule 803(2).” Tocco, 135 F.3d at 127 (approving the admission of an 

26 excited utterance that occurred three hours after the startling event); 

27 see also United States v. Scarpa, 913 F.2d 993, 1017 (2d. Cir. 1990) 

28 (approving the admission of an excited utterance despite a “lapse of 

29 five or six hours” between the utterance and the startling event). 
26 

1 In this case, Johnson argues that the email lacked the 

2 “spontaneity” necessary to qualify as an excited utterance. Gutfeld 

3 sent the email—devoid of excited punctuation or language indicating 

4 that he was startled—several hours after Johnson sent him the 

5 Instagram messages. According to Johnson, “[t]here was no 

6 spontaneity in Gutfeld’s email characterizing the message as a ‘Death 

7 threat.’” Appellant’s Br. 48. 

8 Assuming that the email qualified as hearsay and required a 

9 hearsay exception, we conclude that the district court did not abuse 

10 its discretion by admitting the email as an excited utterance. The 

11 district court reasonably concluded that Gutfeld was still under the 

12 stress of the startling event when he wrote his email to corporate 

13 security personnel. Johnson sent the Instagram message at 5:30 am, 

14 when most people would be asleep—probably including Gutfeld, 

15 who as the district court noted “does an evening show.” App’x 260. 

16 The district court found that Gutfeld would have seen the messages

17 “materially later than 5 something in the morning,” close in time to 

18 when he sent his email at 9:45 am. Id. That Gutfeld titled the email 

19 “Death threat” and forwarded it to security personnel suggests he 

20 took it seriously and was alarmed by it. That Gutfeld noted that the 

21 sender was located in Manhattan does not indicate that Gutfeld was 

22 no longer startled but more likely would have prompted greater 

23 alarm. 

24 Even if the email had not been admitted as an excited utterance,

25 however, its admission would have nonetheless been proper as 

26 evidence of the declarant’s “then-existing state of mind ... or 

27 emotional, sensory or physical condition.” Fed. R. Evid. 803(3). As we 

28 have previously explained, “when a declaration is admitted only to 

29 prove a relevant state of mind, it does not appear to matter whether 

30 admissibility is predicated on the declaration not being hearsay or 
27 

1 under the Rule 803(3) hearsay exception for declaration of states of 

2 mind because under either theory, a state of mind can be proved 

3 circumstantially by statements which are not intended to assert the 

4 truth of the fact being proved.” United States v. Quinones, 511 F.3d 289, 

5 312 (2d. Cir. 2007) (alterations omitted) (quoting United States v. 

6 Southland Corp., 760 F.2d 1366, 1376 (2d Cir. 1985)). The district court 

7 instructed the jury that the email was “in evidence solely for [the jury] 

8 to consider with respect to Mr. Gutfeld’s state of mind when he 

9 received the Instagram post.” App’x 263. The email was therefore 

10 evidence of the degree to which Gutfeld perceived the Instagram 

11 messages to be a serious threat, not whether the messages in fact were 

12 true threats or intended to be. It was not admitted for the truth of the 

13 matter it asserted. Given the two bases on which the email was 

14 properly admitted, the district court did not abuse its discretion by 

15 admitting it. 

16 B 

17 “In all criminal prosecutions, the accused shall enjoy the 

18 right ... to be confronted with the witnesses against him.” U.S. Const. 

19 amend. VI. By guaranteeing that an accused has the right of 

20 confrontation, the Confrontation Clause of the Sixth Amendment

21 “bars the admission at trial of ‘testimonial statements’ of an absent 

22 witness unless she is ‘unavailable to testify, and the defendant has 

23 had a prior opportunity to cross-examine her.’” Smith v. Arizona, 144 

24 S. Ct. 1785, 1791 (2024) (alteration omitted) (quoting Crawford v. 

25 Washington, 541 U.S. 36, 53-54 (2004)). 

26 “[T]wo limits” define the scope of this prohibition. Id. at 1792. 

27 First, “the Clause confines itself to ‘testimonial statements,’” id. at 

28 1792 (quoting Davis v. Washington, 547 U.S. 813, 823 (2006)), “or, put 

29 differently, the Confrontation Clause simply has no application to 
28 

1 nontestimonial statements,” United States v. Feliz, 467 F.3d 227, 231 (2d 

2 Cir. 2006). The Supreme Court has identified a “core class of 

3 ‘testimonial’ statements” that includes “ex parte in-court testimony or 

4 its functional equivalent”; “extrajudicial statements contained in 

5 formalized testimonial materials, such as affidavits, depositions, prior 

6 testimony, or confessions”; and “statements that were made under 

7 circumstances which would lead an objective witness reasonably to 

8 believe that the statement would be available for use at a later trial.” 

9 Garlick v. Lee, 1 F.4th 122, 129 (2d Cir. 2021) (quoting Crawford, 541 U.S. 

10 51-52). Testimonial statements also include “statements ‘made in the 

11 course of police interrogation’” when “the primary purpose of the 

12 interrogation was to establish or prove past events potentially 

13 relevant to later criminal prosecution.” Smith, 144 S. Ct. at 1792 

14 (alteration omitted) (quoting Davis, 547 U.S. at 822). But “statements 

15 made to police ‘to meet an ongoing emergency’” that “were ‘not 

16 procured with a primary purpose of creating an out-of-court 

17 substitute for trial testimony’” are not testimonial. Id. (quoting 

18 Michigan v. Bryant, 562 U.S. 344, 358-59 (2011)). “The reliability of a 

19 testimonial statement may be determined only ‘by testing in the 

20 crucible of cross-examination.’” Garlick, 1 F.4th at 129 (quoting 

21 Crawford, 541 U.S. at 61).

22 Second, the Confrontation Clause “bars only the introduction 

23 of hearsay—meaning, out-of-court statements offered ‘to prove the 

24 truth of the matter asserted.’” Smith, 144 S. Ct. at 1792 (quoting 

25 Anderson v. United States, 417 U.S. 211, 219 (1974)). “When a statement 

26 is admitted for a reason unrelated to its truth ... the Clause’s ‘role in 

27 protecting the right to cross-examination’ is not implicated.” Id. 

28 (quoting Tennessee v. Street, 471 U.S. 409, 414 (1985)). 

29 Johnson argues that the admission of Gutfeld’s email violated 

30 the Confrontation Clause because the email included a testimonial 
29 

1 statement made by a non-testifying declarant. According to Johnson, 

2 when Gutfeld turned over the Instagram messages to Fox security

3 personnel, he would have expected that government prosecutors 

4 would use the email as the functional equivalent of in-court 

5 testimony. We disagree. The admission of the email did not violate 

6 the Confrontation Clause because the email fell outside the “two 

7 limits” the Supreme Court has identified: it was neither testimonial 

8 nor hearsay. Smith, 144 S. Ct. at 1792. 

9 First, the email was non-testimonial because it was not 

10 generated as part of a police interrogation, investigation, or any other 

11 process that aimed “to establish or prove past events potentially 

12 relevant to later criminal prosecution.” Smith, 144 S. Ct. at 1792 

13 (quoting Davis, 547 U.S. at 822). The email was even further removed 

14 from the class of testimonial statements than “statements made to 

15 police ‘to meet an ongoing emergency’” that “were ‘not procured 

16 with a primary purpose of creating an out-of-court substitute for trial 

17 testimony,’” id. (quoting Bryant, 562 U.S. at 358-59), because Gutfeld 

18 did not even communicate with law enforcement. Rather, he alerted 

19 his company’s internal personnel about a possible threat with the 

20 purpose of addressing his immediate security concern rather than 

21 establishing past events.

22 Second, as the district court instructed the jury, the email was 

23 admitted “solely for [the jury] to consider with respect to 

24 Mr. Gutfeld’s state of mind when he received the Instagram post.” 

25 App’x 263. It was therefore admitted not for the truth of the matter 

26 asserted but to establish “a state of mind,” which “can be proved 

27 circumstantially by statements which are not intended to assert the 

28 truth of the fact being proved.” Quinones, 511 F.3d at 312 (quoting 

29 Southland Corp., 760 F.2d at 1376). Under these circumstances, the 
30 

1 admission did not violate the Confrontation Clause. See Smith, 144 

2 S. Ct. at 1792. 

3 IV 

4 Johnson argues that the district court erred when it delivered 

5 an uncalled witness charge, instructing the jury that the absence of 

6 witnesses “should not affect your judgment one way or another.” 

7 App’x 514. Johnson claims that the instruction “severely prejudiced 

8 the defense” because it “undermined the valid defense argument that 

9 the subjects’ failure to testify demonstrated that they did not take the 

10 threats seriously.” Appellant’s Br. 53. We conclude that the 

11 instruction was not erroneous. 

12 When a particular witness is equally available to both sides but

13 neither party calls the witness, “the court has discretion to (1) give no 

14 instruction and leave the entire subject to summations, (2) instruct the 

15 jury that no unfavorable inference may be drawn against either side, 

16 or (3) instruct the jury that an adverse inference may be drawn against 

17 either or both sides.” United States v. Caccia, 122 F.3d 136, 139 (2d Cir. 

18 1997) (citations omitted). In this case, the district court chose the 

19 second option. One leading commentary explains that this “option, 

20 charging that no inference should be drawn against either party, is 

21 recommended” and that “courts are in general agreement concerning 

22 the acceptability of ... instructing the jury to draw no inferences 

23 against either party.” 1 Modern Federal Jury Instructions—Criminal 

24 ¶ 6.04 (2024). Such an “instruction is preferred because it removes the 

25 issue from consideration of the jury, avoiding the possibility that the 

26 jury will draw inappropriate inferences from the absence of the 
31 

witness.” Id. 10 1 Overall, “[t]he decision whether to give a missing 

2 witness instruction is within the discretion of the trial court.” United 

3 States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994). 

4 The district court did not abuse that discretion here. Johnson 

5 argues that the instruction prevented the jury from considering the 

6 defense’s “valid point that the failure of any of the subjects” of the 

7 alleged threats “to testify showed that they did not take these videos 

8 seriously.” Appellant’s Br. 54-55. But Johnson does not dispute that 

9 “both sides had an equal opportunity or lack of opportunity to call” 

10 the subjects “as witnesses.” App’x 514. Had Johnson wanted to show 

11 that the subjects did not take the threats seriously, the defense could 

12 have subpoenaed Gutfeld, Ingraham, Manchin, or Boebert. Having 

13 chosen not to do so, the defense could not argue to the jury that the 

14 government’s decision to make the same choice as the defense serves 

15 as evidence of what the witnesses would have said. 

16 Johnson points to a statement in the opinion in Caccia—

17 describing the prior opinion in Adeniji—to the effect that “we have 

18 suggested that where a witness is equally available to both sides, a 

19 missing witness charge is ‘inappropriate.’” Caccia, 122 F.3d at 139 

20 (quoting Adeniji, 31 F.3d at 65); Appellant’s Br. 54. But neither Adeniji

21 nor Caccia help Johnson. In Adeniji, the defendant argued that “the 

22 district court committed plain error in failing to give a missing witness 

10 But see 2 John Henry Wigmore, Evidence § 288(c), at 208 (Chadbourn rev.

1979) (arguing that “the more logical view is that the failure to produce is 

open to an inference against both parties, the particular strength of the 

inference against either depending on the circumstances”). We have said 

that when “the district court instructs the jury that the defendant is not 

compelled to produce any witnesses, there may be some question as to 

which of the two alternative charges would be the more logical.” United 

States v. Bahna, 68 F.3d 19, 22 (2d Cir. 1995). 
32 

1 charge regarding the unnamed agent who purportedly questioned 

2 him about the jackets.” Adeniji, 31 F.3d at 65 (emphasis added). The 

3 defendant thought the jury should have been instructed that an 

4 adverse inference could be drawn against the government for failing 

5 to call the agent because “[i]t is well settled that when a party has it 

6 peculiarly within its power to produce witnesses and fails to do so, 

7 the jury may infer that the testimony, if produced, would be 

8 unfavorable to that party.” Id. (quoting United States v. Myerson, 18 

9 F.3d 153, 158 (2d Cir. 1994)). We said that “[w]here the witness is 

10 equally available to both parties, an instruction on this inference”—

11 that is, an adverse inference—“is inappropriate.” Id. Because “Adeniji 

12 [had] not shown that the missing agent was unavailable to him,” he 

13 could not establish that the district court erred in not affirmatively 

14 authorizing an adverse inference against the government. Id. 

15 Our decision in Caccia similarly concerned an “instruction 

16 permitting an inference against either or both parties.” Caccia, 122 F.3d 

17 at 139 (emphasis added). We said that such an instruction was 

18 “especially inappropriate because of the circumstances countering the 

19 equal availability of the witness.” Id. The missing witness had assisted 

20 the government as an informant “and had expressed unwillingness 

21 to speak to defense counsel before trial.” Id. We said that while “the 

22 witness, having ended a relationship with the Government two years 

23 previously, was not so peculiarly within the Government’s control as 

24 to require the defendant’s requested instruction” authorizing an 

25 adverse inference against the government, “the trial judge would 

26 have been well advised either to refrain from giving an ‘equal 

27 availability’ instruction or to instruct that no inference should be 

28 drawn.” Id. We concluded that the district court’s instruction 

29 permitting an inference against either party was not prejudicial, but 
33 

1 our statement that a “no inference” instruction would have been 

2 preferable undermines Johnson’s argument here.

3 In fact, in United States v. Dawkins, we specifically rejected a 

4 challenge to a jury instruction almost identical to the jury instruction 

in this case. 5 11 The defendants in Dawkins requested an adverse 

6 inference instruction against the government because “one of the 

7 Government’s key witnesses, undercover agent D’Angelo, was 

8 unavailable to them.” Dawkins, 999 F.3d at 796. But the district court 

9 explained that “if the defendants had wanted to call D’Angelo to 

10 testify about his meetings with the defendants, or for some other 

11 permissible purpose, they clearly could have done so.” Id. at 797. We 

12 concluded that the case “falls within the situation we described in 

13 United States v. Caccia: ‘where a witness is equally available to both 

14 sides, but is not called by either side[,] the court has discretion’” to 

11 Compare United States v. Dawkins, 999 F.3d 767, 796 (2d Cir. 2021) (“There 

are several persons whose names you may have heard during the course of 

the trial but did not appear to testify. I instruct you that each party has an 

equal opportunity, or lack of opportunity, to call any of these witnesses. 

Therefore, you should not draw any inferences or reach any conclusions as 

to what they would have testified to had they been called. Their absence 

should not affect your judgment in any way. You should, however, 

remember my instruction that the law does not impose on a defendant in a 

criminal case, the burden or duty of calling any witness or producing any 

testimony.”), with App’x 514 (“Now, there are a number of people whose 

names you’ve heard during the course of the trial who did not come here 

and testify. I instruct you that both sides had an equal opportunity or lack 

of opportunity to call those people as witnesses. Therefore, you should not 

draw any inference or reach any conclusions as to what they would have 

said had they been called. Their absence should not affect your judgment 

one way or the other. You should, however, remember my instruction that 

the defendant is not obliged in a criminal case to call any witnesses or 

produce any evidence.”).
34 

1 give one of the three possible instructions, and “[t]he district court’s 

2 choice of the second option fell within its broad discretion.” Id.

3 (alteration omitted) (quoting Caccia, 122 F.3d at 139). 

4 In this case, Johnson “clearly could have” called the subjects of 

5 his threats to testify. Id. Having made the same choice as the 

6 government not to do so, he cannot claim that an inference should 

7 point only in one direction or fault the district court for seeking to 

8 “avoid[] the possibility that the jury will draw inappropriate 

9 inferences from the absence of the witnesses.” 1 Modern Federal Jury 

10 Instructions—Criminal, supra, ¶ 6.04. Under these circumstances, the 

11 district court was “well advised ... to instruct that no inference should 

12 be drawn.” Caccia, 122 F.3d at 139. 

13 V 

14 Finally, Johnson argues that the district court erred in 

15 admitting the testimony of Kelley regarding the seriousness of 

16 Johnson’s threats. According to Johnson, the testimony was 

17 impermissible expert opinion under Federal Rule of Evidence 701 and 

18 usurped the role of the jury. Appellant’s Br. 56-58. We disagree. 

19 “We review a district court’s evidentiary rulings under ‘a 

20 deferential abuse of discretion standard’ and will disturb its rulings 

21 ‘only where the decision to admit or exclude evidence was manifestly 

22 erroneous,’” United States v. Skelos, 988 F.3d 645, 662 (2d Cir. 2021) 

23 (quoting United States v. Litvak, 808 F.3d 160, 179 (2d Cir. 2015)), and 

24 “only if [the] error affects a ‘substantial right’” in that it “had a 

25 ‘substantial and injurious effect or influence’ on the jury’s verdict,” 

26 United States v. Garcia, 413 F.3d 201, 210 (2d Cir. 2005) (quoting United 

27 States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003)). 

28 Rule 701 provides that “[i]f a witness is not testifying as an 

29 expert, testimony in the form of an opinion is limited” to an opinion 
35 

1 that is “(a) rationally based on the witness’s perception,” “(b) helpful 

2 to clearly understanding the witness’s testimony or to determining a 

3 fact in issue,” and “(c) not based on scientific, technical, or other 

4 specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 

5 701. Because such an opinion is not expert but “lay opinion,” it must 

6 reflect “reasoning processes familiar to the average person in 

7 everyday life.” Garcia, 413 F.3d at 215. The “helpfulness requirement 

8 is principally designed to provide assurance against the admission of 

9 opinions which would merely tell the jury what result to reach.” 

10 United States v. Flores, 945 F.3d 687, 706 (2d Cir. 2019) (internal 

11 quotation marks and alteration omitted). 

12 Johnson suggests that Kelley’s testimony about the nature of 

13 the threats amounted to impermissible expert testimony because his 

14 “reasoning process was not that of an average person in everyday 

15 life” but reflected “specialized knowledge.” United States v. Cabrera, 

16 13 F.4th 140, 150 (2d Cir. 2021); Appellant’s Br. 62-64. Johnson also 

17 contends that Kelley’s testimony “usurped the function of the jury to 

18 decide what to infer” from the evidence. United States v. Grinage, 390 

19 F.3d 746, 750 (2d Cir. 2004); Appellant’s Br. 64-66. 

20 Kelley testified about the events that followed the NYPD 

21 alerting him to the threatening messages and videos that Johnson 

22 posted. Kelley testified that he contacted Representative Boebert’s 

23 chief of staff at 11:30 pm on February 4, 2021, because of “the type of 

24 threat” he witnessed in the videos. App’x 114. Kelley thought that the 

25 language “was concerning enough” that he “felt that it was necessary 

26 to make sure that the office and the member of Congress was properly 

27 notified.” Id. When asked to explain how he formulated that opinion, 

28 he testified that he was concerned about three elements of the threats: 

29 (1) that Johnson had said “I’m going to kill you,” phrasing that was 

30 more “intens[e]” than “we are going to kill you” or “I hope you die,” 
36 

1 id. at 116-17; (2) that Johnson repeated the threat “over and over 

2 again” throughout the video, id. at 117; and (3) that Johnson had 

3 “tagged” Boebert’s account in the video, id. 

4 With regard to the threats against Manchin, Kelley testified that 

5 he ordered directed patrols at Manchin’s home because of “the 

6 concerning nature and threatening aspect of [Johnson’s] comments.” 

7 Id. at 201. On redirect, Kelley testified that he called Manchin’s chief

8 of staff because he was concerned by the “intensity of the language,” 

9 the “repetition of the statements,” and the content of the caption in 

10 the post. Id. at 244-45. 

11 We conclude that the district court did not err in admitting 

12 Kelley’s testimony. First, Kelley’s “specialized knowledge, or the fact 

13 that he was chosen to carry out an investigation because of this 

14 knowledge, does not render his testimony ‘expert’ as long as it was 

15 based on his ‘investigation and reflected his investigatory findings 

16 and conclusions, and was not rooted exclusively in his expertise.’” 

17 United States v. Rigas, 490 F.3d 208, 224 (2d Cir. 2007) (quoting Bank of 

18 China, N.Y. Branch v. NBM LLC, 359 F.3d 171, 181 (2d Cir. 2004)). 

19 Kelley’s testimony was properly based on his investigation rather

20 than exclusively on his expertise. Second, because Kelley’s testimony 

21 “resulted from a process of reasoning familiar in everyday life, it was 

22 permissible lay opinion testimony under Rule 701.” Rigas, 490 F.3d at 

23 224 (internal quotation marks and alteration omitted). Kelley’s 

24 testimony that he was concerned by such things as the “intensity of 

25 the language” and the “repetition of the statements,” App’x 244-45, 

26 hardly reflects the sort of “opaque, intuitive process grounded in 

27 some kind of specialized knowledge” that characterizes expert 

28 testimony, Cabrera, 13 F.4th at 150. 
37 

1 In Cabrera, by contrast, the testifying agent reached an inference 

2 “well beyond” what a lay person could have inferred. Id. In particular, 

3 the agent “inferred from Cabrera’s driving that Cabrera must be one 

4 of those experienced drug-dealers who had mastered the technique 

5 of evading law enforcement.” Id. We said that “[a] lay person [would 

6 be] unfamiliar with law enforcement surveillance techniques and 

7 incapable of inferring that a suspect’s driving maneuvers evince 

8 (1) experience with evading those techniques and, consequently, 

9 (2) experience dealing drugs.” Id. To the contrary, a lay “juror might 

10 as easily ascribe those maneuvers to watching the movies, or to a 

11 paranoia born of inexperience.” Id. Kelley’s testimony was not “based 

12 on specialized experience that the agent had accumulated from other 

13 cases” nor did it involve “a specialized reasoning process not readily 

14 understandable to the average juror.” United States v. Cuti, 720 F.3d 

15 453, 460 (2d Cir. 2013). Because Kelley’s “reasoning was evident to the 

16 jury,” it was not impermissible expert testimony. Id.

17 Additionally, we have said that it may be appropriate to 

18 introduce testimony “to explain the investigation, or to show an 

19 agent’s state of mind so that the jury will understand the reasons for 

20 the agent’s subsequent actions,” and that such testimony may 

21 “constitute appropriate rebuttal to initiatives launched by the 

22 defendant.” United States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994). In this 

23 case, the defense argued to the jury in its opening statement that Fox 

24 Corporation did not respond in the same way to all threats but singled 

25 out Johnson for his political views. The defense “implore[d]” the jury 

26 “to ponder why that is.” App’x 99. “Why does Fox News, why did 

27 they choose to pursue Mr. Johnson, but not others?” Id. The argument 

28 suggested that law enforcement had an improper motivation in 

29 targeting Johnson, given “the constant barrage of criticism and threats 

30 from the public,” id. at 99-100, including from Fox Corporation, which 
38 

1 alerted law enforcement in the first place. This argument focused on 

2 the motivation of law enforcement in responding to Johnson’s threats. 

3 After the defense put that motivation at issue, it was proper for the 

4 district court to allow the government to elicit testimony from Kelley 

5 about why he responded to Johnson’s threats the way that he did. 

6 Johnson nevertheless contends that Kelley’s testimony 

7 “‘usurped the function of the jury to decide what to infer from the 

8 content’ of [Johnson’s] statements and simply told the jurors what to 

9 infer.” Appellant’s Br. 65 (quoting Grinage, 390 F.3d at 750). In Grinage, 

10 a law enforcement agent “interpreted both the calls that the jury heard 

11 and the calls that the jury did not hear,” applying specialized 

12 expertise not only to decode the slang used in the calls but also to infer 

13 from the calls the extent to which the participants must have been 

14 involved in a drug conspiracy. Grinage, 390 F.3d at 750. Kelley’s 

15 testimony, by contrast, “reflected his investigatory findings and 

16 conclusions” and was otherwise based on “a process of reasoning 

17 familiar to everyday life.” Rigas, 490 F.3d at 224. His testimony did 

18 not “provid[e] an overall conclusion of criminal conduct” that 

19 usurped the jury’s function. United States v. Zhong, 26 F.4th 536, 556 

20 (2d Cir. 2022) (quoting Dukagjini, 326 F.3d at 54). 

21 CONCLUSION 

22 For the foregoing reasons, we affirm the judgment of the 

23 district court.
CHIN, Circuit Judge, dissenting: 

In this case, defendant-appellant Rickey Johnson was convicted on 

three counts of a four-count superseding indictment -- by an eleven-person jury. 

After discharging the twelfth juror (no alternates were available), the district 

court proceeded with only eleven jurors. A district court, however, has 

discretion to permit an eleven-person jury in a criminal case only upon the 

parties' written stipulation or for good cause "[a]fter the jury has retired to 

deliberate." Fed. R. Crim. P. 23(b)(3). Here, the district court did not have the 

consent of the parties and the jury had not yet retired to deliberate. Hence, the 

district court did not have authority to permit a jury of eleven persons to return a 

verdict, and it erred in permitting an eleven-person jury to do so here.1 

On appeal, Johnson argues that the district court's violation of Rule 

23(b) requires vacatur of his convictions without a consideration of prejudice 

1 Rule 23(b)(2) provides that"[a]t any time before the verdict, the parties may, with 

the court's approval, stipulate in writing" to a jury of "fewer than 12 persons." The 

parties may stipulate to fewer than twelve persons outright or to fewer than twelve 

persons "if the court finds it necessary to excuse a juror for good cause after the trial 

begins." Fed. R. Crim. P. 23(b)(2)(A), (B). Rule 23(b)(3) provides that "[a]fter the jury 

has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, 

even without a stipulation by the parties, if the court finds good cause to excuse a 

juror." The provision permitting an eleven-person jury was added when Rule 23 was 

amended in 1983. See generally United States v. Stratton, 779 F.2d 820, 831 (2d Cir. 1985). 
2 

because the error is structural. Alternatively, Johnson argues that, even 

assuming the error is not structural, the government has failed to show that the 

error was harmless. The majority affirms, concluding that, while the district 

court did err in proceeding with an eleven-person jury in the circumstances here, 

the error was not structural and, moreover, the error was harmless.

In my view, the error was structural. Even assuming a defendant 

does not have a constitutional right to a twelve-person jury, the Federal Rules of 

Criminal Procedure give a defendant that right in a federal criminal case, a right 

that can be circumscribed only in the limited circumstances specified in Rule 

23(b). The requirement of a twelve-person jury rendering a unanimous verdict is 

part of the fundamental framework within which a federal criminal trial 

operates, and has been a critical aspect of our criminal justice system for 

hundreds of years. 

Even assuming the error is not structural, the government has not 

met its burden of showing that the error did not prejudice Johnson. See United 

States v. Vonn, 535 U.S. 55, 62 (2002) (where a defendant timely objects to error

and harmless error review pursuant to Rule 52(a) applies, the government bears 

"the burden of showing that any error was harmless, as having no effect on the 
3 

defendant's substantial rights"); United States v. Blaszczak, 56 F.4th 230, 245 (2d 

Cir. 2022) ("In harmless-error analysis, the government bears the burden of 

proof."). I cannot say with any assurance, let alone "fair assurance," that the 

jury's "judgment was not substantially swayed by the error," and in my view "it 

is impossible to conclude that substantial rights were not affected." Kotteakos v. 

United States, 328 U.S. 750, 765 (1946). 

Accordingly, I respectfully dissent.2

I.

On February 3, 2021, while watching television alone at home, 

Johnson made eight videos, recording himself ranting as Fox News television 

hosts Greg Gutfeld and Laura Ingraham, Senator Joe Manchin, and 

Congresswoman Lauren Boebert each appeared on the screen. He made 

statements to the effect that he was going to kill them. He posted the videos to 

his Instagram account. Gutfeld and Boebert were the subjects of one video each, 

Manchin was the subject of two videos, and the remaining four videos pertained 

to Ingraham. Johnson also sent a written message to Gutfeld on January 30, 2021, 

2

 In affirming, the majority rejects Johnson's other challenges to his conviction. See 

Majority Op. at 2. Because, in my view, the violation of Rule 23(b) alone requires 

vacatur, I do not address the other grounds raised by Johnson on appeal. 
4 

through Instagram, stating that Gutfeld "will be killed." App'x at 565. For this 

conduct, the Superseding Indictment charged Johnson with two counts of 

transmitting threatening communications in interstate commerce in violation of 

18 U.S.C. § 875 and two counts of threatening a United States official in violation 

of 18 U.S.C. §§ 115(a)(1)(B) and (b)(4). Counts One and Four charged Johnson 

with making threats against Gutfeld and Ingraham, respectively. Counts Two 

and Three charged Johnson with making threats against Senator Manchin and 

Representative Boebert, respectively.

All four counts of the Superseding Indictment required the 

government to prove beyond a reasonable doubt that Johnson's statements were 

"true threats" -- that is, "serious statement[s] expressing an intention to inflict 

bodily injury or to kill at once or in the future . . . [and] made in such 

circumstances that a reasonable person who heard or read the statement would 

understand it as a serious expression of an intent to inflict bodily injury or to 

kill." App'x at 498. This element of the charged offenses was the key issue in 

dispute at trial.

Johnson's trial, from voir dire to verdict, spanned five days. Trial 

commenced on Wednesday, February 16, 2022. Twelve jurors and two alternates 
5 

were selected in the morning, and the government began presenting its case in 

the afternoon. The next morning, Thursday, February 17, despite some delays 

because of issues with two jurors (one, an alternate, was excused and one -- Juror 

no. 2 -- was questioned but kept on the jury), the government completed its case 

and it rested by the afternoon. The defense called its one and only witness that 

afternoon as well. Proceedings were then adjourned until Tuesday, February 22, 

because of Presidents' Day Weekend.

When trial resumed on Tuesday, on consent of the parties, the 

district court excused Juror no. 7 and replaced him with the one remaining 

alternate. The trial court then decided, over Johnson's objection, to excuse Juror 

no. 2 based on its finding that the juror was "actively biased against the 

government." Id. at 401. The district court decided to proceed with eleven jurors 

over Johnson's objection, concluding that it was permitted to do so under "Rule 

24." Id.3

The defense did not present any further evidence and rested. 

Counsel delivered their summations; the court charged the jury; and the eleven3 The district court was mistaken in citing Rule 24, and the lawyers did not correct 

the error. Rule 24 covers voir dire, peremptory challenges, and alternate jurors, and it 

does not address the number of jurors required to render a verdict. See Fed. R. Crim. P. 

24. 
6 

member jury began its deliberations at 3:09 p.m. The jury was sent home at 5:25 

p.m. The jury continued its deliberations the next day, Wednesday, February 23. 

At one point, the jury sent out a note asking, in part: "Can we consider the 

defendant not guilty by virtue of mental illness? Do we have to convict even if 

we think he is mentally ill?" App'x at 530-31. At 4:45 p.m., the jury sent out 

another note, stating: "At this time we have not reached a consensus on one of 

the counts. We do not believe we will reach a consensus. How do we 

proceed[?]" Id. at 540. The court denied Johnson's request for a mistrial as to the 

one count, and gave the jury the option of continuing to deliberate without 

returning a partial verdict as to the counts it agreed on or returning a partial 

verdict on those counts and then continuing to deliberate on the final count. 

At 5:40 p.m., the jury sent another note indicating it had reached a 

verdict. The jury returned a partial verdict, finding Johnson guilty of Counts 

One, Two, and Four. As the jury was being polled, the foreperson asked if he 

could say something, and then advised the court that "[w]e do not believe we 

will be able to reach a consensus on Count Three." Id. at 545. The district court 

instructed the jury nonetheless to return the next day. The jury indeed returned 
7 

the next morning, Thursday, February 24, and continued its deliberations. At 

5:08 p.m., it returned a verdict on Count Three, finding Johnson not guilty. 

Accordingly, although the trial spanned five days, the presentation 

of evidence took only one day, while the jury deliberations took more than two 

full days. 

II.

The first issue is whether Johnson is entitled to relief without regard 

to prejudice. Most errors that are preserved at trial -- including many 

constitutional errors -- are reviewed for harmlessness. See Fed. R. Crim. P. 52(a) 

("Any error, defect, irregularity, or variance that does not affect substantial rights 

must be disregarded."); see also Arizona v. Fulminante, 499 U.S. 279, 306 (1991) 

("Since this Court's landmark decision in Chapman v. California, 386 U.S. 18 (1967), 

in which we adopted the general rule that a constitutional error does not 

automatically require reversal of a conviction, the Court has applied harmlesserror analysis to a wide range of errors and has recognized that most 

constitutional errors can be harmless." (collecting cases)). The "common thread 

connecting" cases where harmless-error review has been applied "is that each 

involved 'trial error' -- error which occurred during the presentation of the case 
8 

to the jury, and which may therefore be quantitatively assessed in the context of 

other evidence presented in order to determine whether its admission was 

harmless beyond a reasonable doubt." Fulminante, 499 U.S. at 307-08. 

The Supreme Court has "recognized, however, that some errors 

should not be deemed harmless beyond a reasonable doubt. These errors came 

to be known as structural errors." Weaver v. Massachusetts, 582 U.S. 286, 294 

(2017) (citation omitted). The "defining feature of a structural error," id. at 295, is 

that it "affect[s] the framework within which the trial proceeds, rather than 

simply an error in the trial process itself," Neder v. United States, 527 U.S. 1, 8 

(1999) (quoting Fulminante, 499 U.S. at 310). 

In Weaver, the Supreme Court identified "at least three broad 

rationales" for why a particular error is not amenable to harmless error review, 

and is therefore deemed structural. 582 U.S. at 295. An error "has been deemed 

structural" if (1) "the right at issue is not designed to protect the defendant from 

erroneous conviction but instead protects some other interest," such as "the 

defendant's right to conduct his own defense" or the defendant's right to a public 

trial; (2) "the effects of the error are simply too hard to measure," such as "when a 

defendant is denied the right to select his or her own attorney"; and (3) "the error 
9 

always results in fundamental unfairness," such as "if an indigent defendant is 

denied an attorney or if the judge fails to give a reasonable-doubt instruction." 

Id. at 295-96, 299 (citations omitted). "In a particular case, more than one of these 

rationales may be part of the explanation for why an error is deemed to be 

structural." Id. at 296. 

The first question is thus whether the district court's error in 

excusing the twelfth juror prior to deliberations with no alternates available and 

without Johnson's consent is a structural error that requires automatic reversal. 

A. 

Pursuant to Rule 23(b), Johnson "was entitled to be tried by a twelveperson jury, and the district court possessed no discretion -- prior to 

deliberations -- to conduct the trial with an eleven-member jury, absent 

[Johnson's] consent." United States v. Curbelo, 343 F.3d 273, 278 (4th Cir. 2003). In 

my view, the district court's failure to comply with Rule 23(b) is a structural error 

requiring automatic reversal of Johnson's convictions. 

The error here falls squarely within Weaver's second rationale for 

deeming an error structural: the repercussions of this error "are simply too hard 

to measure," Weaver, 582 U.S. at 295, and "are necessarily unquantifiable and 
10 

indeterminate," Sullivan v. Louisiana, 508 U.S. 275, 282 (1993). Simply put, an 

appellate court cannot predict with any degree of certainty how an unidentified 

twelfth juror, with his or her varied life experiences and personal beliefs, would 

have viewed the evidence presented against Johnson and participated in 

deliberations with eleven individuals from different walks of life. Cf. United 

States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (holding that the erroneous 

deprivation of the right to counsel of choice is structural because "[i]t is 

impossible to know what different choices the rejected counsel would have 

made, and then to quantify the impact of those different choices on the outcome 

of the proceedings," and thus, "[h]armless-error analysis in such a context would 

be a speculative inquiry into what might have occurred in an alternate 

universe"). 

Because an appellate court cannot know what effect a twelfth juror 

might have had on jury deliberations, making such a determination would be 

based, inherently, on pure speculation. But convictions cannot, and should not, 

be affirmed based on a reviewing court's speculation. See Sullivan, 508 U.S. at 280 

("The Sixth Amendment requires more than appellate speculation about a 
11 

hypothetical jury's action, or else directed verdicts for the State would be 

sustainable on appeal; it requires an actual jury finding of guilty.").

Moreover, unlike the quintessential "trial error" that is subject to 

harmless-error review -- the erroneous admission of evidence -- this Court 

cannot assess the effects of depriving Johnson of a twelve-juror verdict "in the 

context of other evidence presented in order to determine whether its admission 

was harmless beyond a reasonable doubt." Fulminante, 499 U.S. at 308. Given the 

safeguards preventing disclosure of what goes on in the jury room, there is no 

"context" when it comes to a jury's deliberative process. See United States v. 

Thomas, 116 F.3d 606, 618 (2d Cir. 1997) ("As a general rule, no one -- including 

the judge presiding at a trial -- has a 'right to know' how a jury, or any individual 

juror, has deliberated or how a decision was reached by a jury or juror. The 

secrecy of deliberations is the cornerstone of the modern Anglo-American jury 

system."). Under these circumstances, it is impossible for this Court to 

determine, as would be required if reviewing for harmless error, "whether the 

guilty verdict actually rendered in this trial was surely unattributable to the [Rule 

23(b)] error." Sullivan, 508 U.S. at 279 (emphasis in original); see also United States 

v. Essex, 734 F.2d 832, 845 (D.C. Cir. 1984) ("In cases involving secret jury 
12 

deliberations it is virtually impossible for a defendant to demonstrate actual 

prejudice. . . . We believe that prejudice is inherent when a court permits a jury of 

12 to continue deliberations and return a verdict with only 11 jurors, without 

making the finding required by the Rule and the stipulation.") (emphasis in 

original). 

Even assuming that the eleven jurors all would have voted the same 

way if there had been a twelfth juror, the twelfth juror could, nonetheless, have 

caused a hung jury by choosing not to abandon her own convictions or 

assessment of the evidence. Of course, it is also possible that a twelfth juror 

could have persuaded one or more of the other jurors to reach a different 

outcome. By suggesting that the verdict in this case would been the same had

the district court's Rule 23(b) error not been made, the majority ignores the 

always-possible outcome of a hung jury, which any juror, acting alone, can cause 

to transpire.4

4 The majority writes that "[h]ad the district court waited a few hours -- and 

dismissed the twelfth juror for cause after the jury had 'retired to deliberate' -- the 

district court would not have violated Rule 23(b)." Majority Op. at 17 (citing Fed. R. 

Crim. P. 23(b)(3)). In that scenario, the district court would have indeed followed Rule 

23(b). But the point is that the district court did not follow the Rule and erred when it 

dismissed the twelfth juror prior to deliberations without Johnson's consent. 

Accordingly, what the majority casts as a "small change in timing" was, in my view, an 

obvious error with a prejudicial effect on Johnson.
13 

Moreover, decisions of our sister circuits have held that proceeding 

with an eleven-member jury without a defendant's consent prior to deliberations 

is a structural error. The Fourth Circuit addressed the exact Rule 23(b) violation 

at issue here and held that "[i]t is this sort of error . . . that is inherently 

prejudicial and per se reversible." Curbelo, 343 F.3d at 285; see also id. ("The Rule 

23(b) error in [defendant's] trial tainted the process by which guilt was 

determined, and it therefore inherently casts doubt on the reliability of the jury's 

verdict."). Other circuits have considered other kinds of Rule 23(b) violations -- 

such as proceeding with a jury of less than twelve pursuant to an oral stipulation 

from the parties, see, e.g., United States v. Taylor, 498 F.2d 390, 392 (6th Cir. 1974), 

or dismissing the twelfth juror without cause after deliberations had begun, see, 

e.g., Essex, 734 F.2d at 845 -- and held that such violations also require reversal 

without engaging in harmless-error review, see Curbelo, 343 F.3d at 283-85 

(collecting cases). 

For these reasons, the district court's Rule 23(b) error is structural.

B. 

The majority holds that the district court's Rule 23(b) error is not 

structural because "the right to a twelve-member jury is neither a constitutional 
14 

nor even a substantial right." Majority Op. at 14. Although the Supreme Court 

initially interpreted the Sixth Amendment to preserve the right to be tried by "a 

jury constituted, as it was at common law, of twelve persons," Thompson v. Utah, 

170 U.S. 343, 349 (1898), the Court more recently held that the Sixth Amendment, 

as applied to the states through the Fourteenth Amendment, does not require 

twelve jurors for conviction, see Williams v. Florida, 399 U.S. 78, 102 (1970) ("[T]he 

fact that the jury at common law was composed of precisely 12 is a historical 

accident, unnecessary to effect the purposes of the jury system and wholly 

without significance 'except to mystics.'" (citation omitted)). In my view, 

however, Williams does not foreclose the conclusion that the error here is 

structural.

The Supreme Court has never held that an error is structural only if 

it affects a defendant's constitutional rights. Despite occasionally suggesting in 

dicta that structural errors implicate constitutional rights, see, e.g., Neder, 527 U.S. 

at 7 ("[W]e have recognized a limited class of fundamental constitutional errors 

that defy analysis by 'harmless error' standards." (citation and internal quotation 

marks omitted)), the Supreme Court has never explicitly held that errors must

affect a defendant's constitutional rights to qualify as structural error, see Curbelo, 
15 

343 F.3d at 280 n.6 (collecting cases). The observation that not every 

constitutional error qualifies as structural error does not mean that only errors 

premised on a constitutional deprivation can so qualify. See, e.g., Sullivan, 508 

U.S. at 278 ("[W]e [have] rejected the view that all federal constitutional errors in 

the course of a criminal trial require reversal."); Rose v. Clark, 478 U.S. 570, 577 

(1986) (noting that the Supreme Court has "recognized that some constitutional 

errors require reversal without regard to the evidence in the particular case"). 

Moreover, Williams involved state criminal proceedings and a 

Florida statute that permitted six-person juries in non-capital criminal cases. 399 

U.S. at 79-80. The Court's holding that a defendant does not have a Sixth 

Amendment right to a twelve-person jury in a state criminal case where state law 

provides for less than a twelve-person jury does not mean that a defendant in a 

federal criminal case does not have a substantial right to a twelve-person jury 

under the Federal Rules of Criminal Procedure and the long-standing tradition of 

a twelve-person jury in federal criminal practice. 

Likewise, the Second Circuit has not held that structural errors must

be of constitutional dimension. Rather, we have recognized that "[c]ategories of 

error found by the Supreme Court to be 'structural' ordinarily relate to 'certain 
16 

basic, constitutional guarantees that should define the framework of any criminal 

trial.'" Shabazz v. United States, 923 F.3d 82, 84 (2d Cir. 2019) (emphasis added) 

(quoting Weaver, 582 U.S. at 295); see also United States v. Moran-Toala, 726 F.3d 

334, 343 (2d Cir. 2013) ("Courts have recognized a limited number of structural 

errors, all involving the violation of bedrock constitutional rights, such as total 

deprivation of the right to counsel, exclusion of jurors on the basis of race,; and 

improper closure of a courtroom to the public." (citations omitted)). But there is 

no case in this Circuit where we have deemed an error to be non-structural solely 

because the error was not premised on the deprivation of a constitutional right. 

But see United States v. Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) 

("[G]enerally speaking structural errors must, at a minimum, be constitutional 

errors."); United States v. Stevens, 223 F.3d 239, 244 (3d Cir. 2000) (stating that a 

non-constitutional error "generally cannot amount to a structural defect"). 

As the majority points out, our Court has observed that "Williams

suggests that the absolute right to a jury of twelve . . . is no longer viewed as a 

'substantial right' by the Supreme Court." Stratton, 779 F.2d at 834. We made 

that observation, however, in the context of deciding whether the 1983 

amendment to Rule 23(b) could be applied retroactively, without violating the Ex 
17 

Post Facto clause. See id. at 835 (reducing the jury size from twelve to eleven 

"does not affect the substantial rights of the defendant for Ex Post Facto purposes") 

(emphasis added). The district court elected to proceed with an eleven-person 

jury after deliberations had already commenced when a juror was excused on the 

second day of deliberations. Id. at 830-31. We held that the retroactive 

application of the amendment did not violate the Ex Post Facto clause. Id. at 834. 

Stratton did not hold that the right to a twelve-person jury was not a substantial 

right for other purposes. 

C. 

The right to a twelve-person jury is, in my view, a substantial right 

in the context of a federal criminal trial. Even though the Supreme Court held in 

Williams that the Sixth Amendment, as applied to the states through the 

Fourteenth Amendment, does not require twelve jurors for conviction, "the jury 

right embodied in Rule 23(b) unquestionably has constitutional dimensions." 

Curbelo, 343 F.3d at 278-79; accord Ramos v. Louisiana, 590 U.S. 83, 93 (2020) 

(holding that the Sixth and Fourteenth Amendments require a unanimous jury 

verdict for serious offenses in state and federal courts). Rule 23 "is a formulation 

of the constitutional guaranty of trial by jury." Fed. R. Crim. P. 23, Notes of 
18 

Advisory Committee subd. (a). Indeed, two provisions of the Constitution relate 

specifically to the right to trial by jury. See Art. III, § 2, cl. 3 ("The Trial of all 

Crimes, except in Cases of Impeachment, shall be by Jury."); U.S. Const. amend. 

VI. ("In all criminal prosecutions, the accused shall enjoy the right to a speedy 

and public trial, by an impartial jury of the State and district wherein the crime 

shall have been committed."). 

At common law, at the time of the Sixth Amendment's adoption, 

and until recent history, the right to trial by jury for serious criminal offenses 

meant a trial before twelve jurors, no more no less. "[T]he general infrastructure 

of the criminal jury as a twelve-member body rendering unanimous verdicts was 

clearly established by" the late 14th century in England. Robert H. Miller, 

Comment, Six of One is Not a Dozen of the Other: A Reexamination of Williams v. 

Florida and the Size of State Criminal Juries, 146 U. Pa. L. Rev. 621, 638-39 (1998); see 

also Ramos, 590 U.S. at 90 (noting that one late 14th century English decision 

stated that a "'verdict, taken from eleven, was no verdict' at all" (quoting James 

Bradley Thayer, A Preliminary Treatise On Evidence At The Common Law 89 

n.4 (1898)). In 1769, Blackstone reiterated the common-law rule -- no person 

could be found guilty of a serious crime unless "the truth of every accusation . . . 
19 

should afterwards be confirmed by the unanimous suffrage of twelve of his 

equals and neighbours, indifferently chosen." William Blackstone, 4 

Commentaries on the Laws of England 343, 552 (1769). This same common-law 

rule applied in the young American colonies, see, e.g., IV. Unshrinking the Federal 

Civil Jury, 110 Harv. L. Rev. 1466, 1468 (1997) ("In the American colonies, the 

Charter of Jamestown established the twelve-person jury in 1607."), and well 

after the Sixth Amendment's adoption, see, e.g., Joseph Story, 2 Commentaries on 

the Constitution of the United States 588 (1858) ("And a trial by jury is generally 

understood to mean, ex vi termini, a trial by a jury of twelve men, impartially 

selected, who must unanimously concur in the guilt of the accused before a legal 

conviction can be had. Any law therefore, dispensing with any of these 

requisites, may be considered unconstitutional."); Foote v. Lawrence, 1 Stew. 483, 

483 (Ala. 1828) ("The term jury is well understood to be twelve men . . . .") 

(emphasis in original); Work v. State, 2 Ohio St. 296, 304 (1853) ("The number 

must be twelve . . . ."); Cancemi v. New York, 18 N.Y. 128, 138 (1858) ("It would be a 

highly dangerous innovation, in reference to criminal cases, . . . for the court to 

allow any number short of a full panel of twelve jurors, and we think it ought not 

to be tolerated."); Thompson, 170 U.S. at 349. 
20 

 The majority's holding that a defendant's right pursuant to Rule 

23(b) to a twelve-member jury is not a substantial right eviscerates Rule 23(b). 

The majority's holding that violations of Rule 23(b) are not structural injects a 

requirement of prejudice, when the rule by its terms imposes no such condition. 

It means that trial judges can proceed with fewer than twelve jurors as long as 

they believe the evidence is strong. Such a broad holding strips Rule 23(b) of its 

intended effect -- to ensure that federal criminal cases are decided by jurors of 

twelve, except in certain limited and prescribed circumstances. 

An additional consideration is the length of the trial. The exception 

to the requirement of a twelve-person jury was adopted for a specific reason: to 

address the "dilemma" posed by cases where jurors became incapacitated during 

jury deliberations in long trials. See Stratton, 779 F.2d at 831 (citing United States 

v. Meinster, 484 F. Supp. 442 (S.D. Fla. 1980) (juror had heart attack during 

deliberations after six months of trial), and United States v. Barone, 83 F.R.D. 565 

(S.D. Fla. 1979) (juror became incapacitated during jury deliberations after six 

months of trial)). Indeed, the Advisory Committee Notes to the 1983 

amendments observed as follows: 

If the trial has been brief and not much would be lost by retrial, the court 

might well conclude that the unusual step of allowing a jury verdict 
21 

by less than 12 jurors absent stipulation should not be taken. On the 

other hand, if the trial has been protracted the court is much more 

likely to opt for continuing with the remaining 11 jurors.

Fed. R. Crim. P. 23, Advisory Committee Notes to 1983 Amendments (emphasis 

added). The Advisory Committee recognized that permitting a verdict by only 

eleven jurors was an "unusual" step not to be taken lightly. 

 Here, of course, the trial was indeed brief. This was essentially a 

two-day trial, and the government presented its entire case in the equivalent of 

one full day. It would not have been a significant burden for the case to be 

retried. 

Notwithstanding Williams, a defendant's right to a twelve-person 

jury is a substantial right, and the district court's Rule 23(b) error in this case is in 

my view structural. Johnson is entitled to a new trial, without regard to the issue 

of prejudice.

III.

Even if I were to conclude that the district court's violation of Rule 

23(b) did not constitute structural error and therefore was subject to harmlesserror review, I would nonetheless vacate Johnson's conviction because the 
22 

government has failed to meet its burden of demonstrating that the error was 

harmless.

Pursuant to Federal Rule of Criminal Procedure 52(a), harmlesserror review considers whether the error has "affect[ed] substantial rights." See

Fed. R. Crim. P. 52(a). When the defendant has made a timely objection to an 

error and Rule 52(a) applies, the government bears the burden of demonstrating 

that the error did not prejudice the defendant. See United States v. Olano, 507 U.S. 

725, 734-35 (1993). In determining whether the government has met this burden, 

"we ask whether we can conclude with fair assurance that the errors did not 

substantially influence the jury." United States v. Gupta, 747 F.3d 111, 133 (2d Cir. 

2014) (citation and quotation marks omitted). "The inquiry cannot be merely 

whether there was enough [evidence] to support the result, apart from the phase 

affected by the error. It is rather, even so, whether the error itself had substantial 

influence. If so, or if one is left in grave doubt, the conviction cannot stand." 

Kotteakos, 328 U.S. at 765. 

The majority rejects Johnson's contention that "the case was close." 

Majority Op. at 20. It further contends that "[t]he conduct of the jury did not 
23 

indicate that there was significant disagreement over Counts One, Two, and 

Four." Id. at 20. I disagree.

While it is impossible to know with any certainty what actually 

happened during the deliberations, there are several indications that this was in

fact a close case. First, there was a split verdict -- although the four counts were 

similar in nature and the government presented nearly identical evidence on 

each count, the jury convicted on three counts and acquitted on one count. 

Second, although the presentation of evidence took only the equivalent of one 

day, the jury took more than two days to return a full verdict -- it deliberated for 

more than two hours the first day and until after 5 p.m. on both the second and 

third days. Even with respect to the three counts of conviction, the jury took 

more than a day to reach a verdict. Third, the jury sent out notes suggesting that 

it was having some difficulty -- one inquiring about mental illness and another 

indicating that it could not reach a consensus on one count. Fourth, the 

foreperson reiterated in open court that the jury did not believe it could reach a 

consensus on one count. These are all indications that the jury struggled to reach 

a verdict. A twelfth juror could very well have tipped the balance or brought 

about a deadlock. 
24 

The nature of the crimes charged is significant. As the government 

acknowledges, the case did not depend on the jury's evaluation of witness 

credibility. Rather, the question was what was in Johnson's mind -- whether the 

statements were a serious expression of an intent to kill. The evidence central to 

the government's case was Johnson's videos of Gutfeld, Senator Manchin, 

Representative Boebert, and Ingraham appearing on Fox News and his 

statements recorded therein. These videos were made by Johnson alone in his 

own home in early 2021, and they showed the four subjects as they each 

appeared on live television to discuss various political issues. In each video 

Johnson made similar, but not identical, statements about killing one of the 

subjects. The videos were posted on Johnson's own Instagram account, as to 

which he had only one follower, and which was registered to his actual phone 

number. 

The district court properly instructed that, to constitute a "true 

threat," the jury had to conclude beyond a reasonable doubt that "a reasonable 

person who heard or read the statement would understand it as a serious 

expression of an intent to inflict bodily injury or to kill." App'x at 498. The 

district court also informed the jury that it could make this determination by 
25 

considering the "context in which [the statement] was made, the language that 

the defendant used, the reaction of those who heard or learned of the statement, 

and the effect, if any, on the subject." Id. Jurors are entitled, of course, to rely on 

their common knowledge and life experience in drawing inferences and reaching 

conclusions. See United States v. Huezo, 546 F.3d 174, 182 (2d Cir. 2008); Dawson v. 

Delaware, 503 U.S. 159, 171 (1992) (Thomas, J., dissenting) ("Jurors do not leave 

their knowledge of the world behind when they enter a courtroom . . . ."). 

Johnson's conduct was manifestly erratic, and it is not at all 

surprising that the jurors raised the issue of his mental stability. A reasonable 

jury surely could have concluded that no reasonable person would understand 

Johnson's statements in context as genuinely expressing an intent to kill. He 

made the statements when he was home alone watching television, in the midst 

of the COVID-19 pandemic, while ranting in response to content he was viewing 

on political news programs. He posted the videos to his own Instagram account, 

without any detail as to when or how he would carry out the threats, and 

without any evidence that he took any steps to follow through. Accordingly, in 

my view, the government's evidence here was not strong. See United States v. 

McCallum, 584 F.3d 471, 478 (2d Cir. 2009) ("We have repeatedly held that the 
26 

strength of the government's case is the most critical factor in assessing whether 

error was harmless.").

Even if the government offered "enough [evidence] to support the 

result," harmless-error review requires more. See Kotteakos, 328 U.S. at 765; 

Gupta, 747 F.3d at 133. Again, it is the government's burden to show that the 

error was harmless, and it has failed to meet that burden here. 

IV.

Johnson's convictions should be vacated because the district court 

deprived him of a verdict of twelve jurors, absent his consent. Such an error is 

structural, or in the alternative, prejudiced Johnson. I therefore dissent from the 

majority's decision to affirm the verdict of the eleven-member jury.