United States v. Solano

18-3403-cr USA v. Solano 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2019 5 (Argued: January 7, 2020 Decided: July 22, 2020) 6 Docket No. 18-3403-cr 7 _________________________________________________________ 8 UNITED STATES OF AMERICA, 9 Appellee, — 10 — 11 - v. - 12 JUAN SOLANO, 13 Defendant-Appellant. 14 _________________________________________________________ 15 Before: KEARSE, CALABRESI, and CARNEY, Circuit Judges. 16 Appeal from so much of a judgment, entered in the United States District 17 Court for the Eastern District of New York following a jury trial before LaShann 18 DeArcy Hall, Judge, as convicted defendant of attempted possession of cocaine with 19 intent to distribute. On appeal, defendant, who testified at trial, contends that the 1 district court erred by instructing the jury that "any" witness with "an interest in the 2 outcome" of the trial had "a motive . . . to testify falsely." Concluding that the 3 instruction was plain error and that there is a reasonable probability that defendant 4 was prejudiced by it, we vacate the conviction and remand for such further 5 proceedings as may be appropriate. 6 Vacated and remanded. 7 ALEXANDER MINDLIN, Assistant United States 8 Attorney, Brooklyn, New York (Richard P. 9 Donoghue, United States Attorney for the Eastern 10 District of New York, Jo Ann M. Navickas, Assistant 11 United States Attorney, Brooklyn, New York, on the 12 brief), for Appellee. 13 DANIEL HABIB, New York, New York (Federal 14 Defenders of New York, Inc., Appeals Bureau, New 15 York, New York, on the brief), for Defendant16 Appellant. 17 KEARSE, Circuit Judge: 18 Defendant Juan Solano appeals from so much of a judgment, entered in 19 the United States District Court for the Eastern District of New York following a jury 20 trial before LaShann DeArcy Hall, Judge, as convicted him on one count of attempted — 2 — 1 possession with intent to distribute five kilograms or more of cocaine, in violation of — 2 — 21 U.S.C. §§ 841 (a)(1), 841(b)(1)(A)(ii)(II), and 846. On appeal, Solano, who testified 3 at trial, contends that the district court erred in instructing the jury that "any" witness 4 who had an interest in the outcome of the trial had a motive to testify falsely. 5 Concluding that, with regard to this trial, in which there were serious questions of 6 credibility, the instruction was plain error and that there is a reasonable probability 7 that Solano was prejudiced by it, we vacate his conviction and remand for such 8 further proceedings as may be appropriate. 9 I. BACKGROUND 10 Solano was indicted on one count of conspiring to distribute and possess 11 with intent to distribute cocaine, and one count of attempting to possess cocaine with 12 intent to distribute. After a four-day jury trial, he was acquitted on the conspiracy 13 count but convicted of attempt. 14 The prosecution arose out of events on the afternoon of June 7, 2016, 15 when Solano, a longtime commercial truck driver who had been engaged that 16 morning to pick up a shipping container from the Red Hook Container Terminal in — 3 — 1 Brooklyn ("Red Hook" or the "Terminal"), went to the Terminal to pick up the 2 container, and, concerned that it might contain contraband, telephoned Homeland 3 Security Investigations ("HSI") Special Agent Brian Dalrymple to inquire whether 4 there was any "problem" with the container. There was. But that was only the first 5 of many problems with this case. 6 A. The Trial Evidence 7 Most of the relevant facts are not in dispute. On June 1, 2016, United 8 States Customs and Border Protection ("CBP") officers, conducting cargo 9 examinations of sealed shipping containers at Red Hook, discovered in one of the 10 containers (the "Container") packages of a white powdery substance in boxes of 11 produce. The substance field-tested positive for cocaine; the packages weighed 12 approximately 13.59 kilograms. (See Trial Transcript ("Tr.") 37, 41.) CBP confiscated 13 the cocaine (the "June 1 Seizure"), subjected the Container to an "agriculture hold"-- 14 technically used to prevent removal of a container from a terminal until CBP can 15 determine whether the produce cargo is safe for public consumption--and promptly 16 alerted HSI to the June 1 Seizure. (Id. at 29.) — 4 — 1 HSI decided to attempt a controlled delivery of the Container. The boxes 2 were refilled with the produce--minus the packages of cocaine--and returned to the 3 Container. The Container was resealed; and the "agriculture hold" was eventually 4 lifted, freeing the Container for removal from the Terminal on June 6. On that day, 5 seven or eight members of an HSI task force, each in an unmarked law enforcement 6 vehicle, were positioned inside the Terminal or nearby, in order to follow transport 7 of the Container to determine where--and to whom--it would be delivered. (See id. 8 at 101-03.) 9 On June 7, Solano arrived at Red Hook, picked up the sealed Container 10 and, followed by task force surveillance vehicles, drove it from Brooklyn, through 11 Manhattan, to a warehouse in the Bronx. While at Red Hook, Solano had telephoned 12 HSI Special Agent Dalrymple to ask whether there were any problems with the 13 Container; by the time Dalrymple called Solano back to say there was no problem, 14 Solano had already left the Terminal with the Container. (See id. at 123, 229-32, 246 .) 15 Solano sent Dalrymple a text message stating the address at which Solano was to 16 deliver the Container, along with the contact information for Jimmy Machuca, the 17 person who had engaged him for the job and given him the delivery instructions. (See — 18 — id. at 286 .) Shortly after Solano delivered the Container to the Bronx warehouse and — 5 — 1 departed, he was arrested and taken to an HSI office in Manhattan. (See id. at 108 , 2 113-14, 322, 378.) 3 The disputed issue at trial was whether Solano had known prior to 4 leaving the Terminal that the Container contained narcotics. The principal differences 5 in the evidence concerned what postarrest statements Solano made at the HSI office. 6 The trial evidence as to Solano's statements on June 7, and as to his prior encounters 7 with law enforcement agents, included the following. 8 1. Solano's Prior Interactions with Law Enforcement 9 By June 2016, Solano had been a commercial truck driver in the United 10 States for some 20 years, principally transporting containers of fruit from ports of 11 entry to commercial warehouses. For the last 10 years, he had visited the ports of 12 New York and New Jersey to pick up such containers nearly every day. (See 13 Tr. 464-65.) He estimated that he picked up and delivered nearly 250 containers a 14 year, and over his professional life had transported thousands. (See id. at 185 .) Prior 15 to the events in this case, Solano, who had no criminal record, had been interviewed 16 by law enforcement agents with respect to two controlled deliveries of narcotics — 6 — 1 found in containers at New York area ports, after the containers had been delivered 2 to their respective destinations by Solano. 3 In July 2014, CBP officers had discovered cocaine in a container in a 4 warehouse in Elizabeth, New Jersey. After CBP and HSI removed the cocaine and 5 resealed the container, Solano picked up the container and drove it to another 6 warehouse in Wayne, New Jersey. (See id. at 254 .) Solano was thereafter interviewed 7 several times by HSI Special Agent Dalrymple. On each occasion Solano received 8 Miranda warnings, waived his Miranda rights, and answered all of Dalrymple's 9 questions. (See id. at 259-60, 265-66, 272-77 .) Dalrymple told Solano that drugs had 10 been found in the container; Solano was not arrested. (See id. at 228 .) Dalrymple gave 11 Solano his phone number in case Solano remembered anything else about the case 12 (see, e.g., Tr. 229, 272, 278); and he "may have" asked Solano to let him know if Solano 13 "ever learned of anything illegal going on" (id. at 278). 14 In January 2016, CBP had discovered heroin and cocaine in a container 15 at Red Hook Terminal. The drugs were removed, and the container was resealed for 16 a controlled delivery. This container too was picked up by Solano, who drove it to 17 a warehouse in Linden, New Jersey, where it turned out there was no one to receive 18 it; he then took it to a truck yard in Jersey City, New Jersey, where it remained — 7 — 1 overnight, until he drove it to a warehouse in the Bronx. (See Tr. 478-79.) Solano was 2 subsequently interviewed twice by New York Police Department Detective Michael 3 Corvi, a member of an HSI task force focusing on smuggling at New York area ports. 4 Solano produced the delivery order he had been given and answered the questions 5 asked of him, including identifying the person who had arranged the delivery. 6 Solano was not arrested. (See id. at 318, 320, 554 .) 7 2. Evidence as to Solano's June 7, 2016 Postarrest Statements 8 After his arrest on June 7, Solano was interviewed twice that evening, 9 with the second interview having two stages. The government presented evidence 10 from three witnesses (collectively the "officer witnesses" or "officers") as to statements 11 made by Solano during those interviews: HSI Special Agent Lennis Barrois ("Barrois" 12 or "Lennis"), who was the agent in charge of following up on the June 1 Seizure; HSI 13 Supervising Special Agent Robert Etienne, who supervised HSI special agents and 14 task force members; and HSI task force member Corvi. Solano testified in defense. — 8 — 1 a. Testimony of Barrois and Corvi as to Interview # 1 2 The first interview of Solano on the evening of June 7 was conducted by 3 Barrois and Corvi. Barrois took notes. (See Tr. 181.) Barrois testified that Solano said 4 the Container originally was to have been picked up on June 6 for importer-exporter 5 Jimmy Machuca by Solano's boss, Edwin Pacheco; but Pacheco had not picked up the 6 Container because he had not been feeling well. (See id. at 114 .) While Solano was at 7 a warehouse in the Bronx where he had just made a delivery to a produce wholesaler, 8 he received a call from Machuca asking him to pick up the Container, and he agreed 9 to do so. Solano said that when he mentioned this to the produce wholesaler's 10 manager Javier Montalvo, Montalvo warned "that Machuca was bad and the load was 11 suspicious," which Solano said "he took . . . to mean that Machuca wrote bad checks 12 and didn't pay his . . . truck drivers on time." (Id. at 115.) Solano told the officers that 13 he did not know the Container held drugs. (See id. at 115, 305 .) 14 Corvi gave substantially the same description as Barrois as to what 15 Solano said at that first June 7 interview. Following the interview, Solano was placed 16 in a holding cell. — 9 — 1 b. Testimony of Etienne as to Interview # 2, First Phase 2 Etienne testified that, as supervisor he "ha[d] to make sure everything's 3 okay," and after the first interview ended he went to inquire whether Solano wanted 4 water or needed to use the restroom. (See Tr. 354.) At that time, Solano said he 5 wanted to speak to the officers again. Etienne then brought Solano back to the 6 interview room. 7 Etienne informed Corvi of Solano's request and looked for Barrois but 8 could not find him. Etienne attended the first part of this second interview, with 9 Corvi, bringing along another HSI special agent (who was not called as a witness at 10 trial). In this phase of interview # 2, Etienne questioned Solano, and Corvi took notes. 11 (See id. at 328, 355-60 ; see also id. at 328 (Corvi testified that he too asked questions).) 12 Initially in this phase of interview # 2, Solano continued to state that 13 "Jimmy Machuca told [him] to pick up the container," (id. at 355), and that although 14 Montalvo warned him, "[t]hat container's bad. Be careful" (id. at 356), Solano merely 15 thought Montalvo meant that Machuca "wrote bad checks" (id. at 358). Etienne 16 accused Solano of lying and knowing that the Container held drugs, based on the fact 17 that two people--Montalvo and Pacheco--both told him something was "bad." (Id. 18 at 356-57.) Solano maintained that he did not know about the drugs and pointed out — 10 — 1 that he had called HSI Special Agent Dalrymple to be sure there was no problem. (See — 2 — id. at 356 .) 3 Etienne persisted, asking whether Solano believed "bad" had meant 4 "Bombs? Grenades? Weapons? Drugs?" and testified that Solano reacted differently 5 when Etienne said "Drugs," and that when Etienne repeated "Drugs? [Solano] said, 6 Yes." (Tr. 359.) Etienne testified that Solano then admitted that he knew the 7 Container held drugs when Montalvo warned him about Machuca. Etienne asked 8 whether Solano had knowingly transported drugs before, and when Solano said he 9 had not, Etienne accused him of lying, and Solano admitted that he had knowingly 10 transported drugs on two other occasions for someone named "Lennyn" [sic] (id. 11 at 362-65). 12 Etienne testified that he immediately interrupted interview # 2 in order 13 to find Barrois and have Solano repeat his admissions: 14 I said, Hold on a second. I went to find Special Agent Lennis. I 15 brought Lennis in, right? I recapped everything in front of Lennis, 16 Detective Corvi, and Juan. 17 I said, Lennis, Juan has come around. Juan knows--knows 18 for a fact that there was drugs in that container. . . . 19 I said, Juan, thank you for your honesty. I appreciate it. 20 Now, Juan I want you to tell exactly the same thing over again to — 11 — 1 Special Agent Lennis and Detective Corvi again so they could make 2 sure everything is documented properly. 3 I walked out of the office at that time. 4 (Tr. 365-366 (emphases added).) 5 c. Testimony of Barrois as to Interview # 2, Second Phase 6 Barrois, thus brought back in for the end of interview # 2, testified that 7 [i]n the second interview I conducted, [Solano] admitted to 8 knowing that the container had narcotics, and that he had picked 9 up another container for an individual named Lennyn [sic] 10 sometime in March of 2015 in the Pennsylvania area. 11 (Id. at 117.) Barrois testified that Solano said Montalvo had warned him about the 12 container, and Solano "said he knew that the container contained drugs." (Id.) Barrois 13 testified that Solano provided details about his Pennsylvania trips (see id. at 117-19 ) 14 and discussed another person named "Tyrone" who "facilitates drugs" (id. at 119; see — 15 — id. at 123 ). 16 Although Barrois had taken notes in Solano's first interview, those notes 17 reflected only that Solano had denied knowledge that the Container contained drugs. 18 And while Barrois testified that in interview # 2 Solano confessed to having known 19 that the Container contained drugs, Barrois took no notes during that interview. (See — 12 — 1 Tr. 182.) Barrois had a cellphone with which he could have recorded the 2 interrogation; but in early June 2016, HSI agents were not required to record 3 interrogations, and in interviewing Solano they chose not to do so. (See Tr. 179; id. 4 at 375-76 (Etienne testified that at that time, it was the "prerogative" of the agent 5 conducting an interview to decide whether or not to record it).) 6 d. Testimony of Corvi as to Interview # 2, Second Phase 7 Corvi, who had been at interview # 1, was also present for interview # 2. 8 In interview # 2, Corvi asked some questions and took notes. (See, e.g., Tr. 328.) He 9 testified that in interview # 2, Solano said he had spoken to Montalvo before going to 10 Red Hook to pick up the Container, which Pacheco had declined to pick up the day 11 before because there was something wrong with it. Corvi testified that Solano said 12 he knew, when Montalvo told him to be careful, it was because the Container held 13 drugs. (See id. at 329-31 .) 14 Corvi apparently was the only officer to take notes during interview # 2. 15 And despite his recognition that a confession of knowledge of the drugs would be "an 16 important admission in a drug investigation" (id. at 330)--and despite Supervising 17 Special Agent Etienne's having made a point of wanting his officers to "make sure — 13 — 1 everything [wa]s documented properly" (Tr. 366)--the officers did not ask Solano to 2 sign a statement saying that he had known the Container contained drugs. Moreover, 3 the notes made by Corvi during interview # 2 did not state that Solano said he knew 4 the Container contained drugs. Indeed, with respect to the Container and the June 5 1 Seizure, Corvi's notes did not make any mention whatever of drugs. 6 e. Testimony of Solano 7 Solano testified that what occurred on the morning of June 7 was 8 essentially as the officers described his statements in interview # 1. He received a call 9 that morning from Machuca asking him to pick up a container that day. (See Tr. 486.) 10 Montalvo told Solano to "be careful with Machuca because . . . it's kind of hard to get 11 him to pay." (Id.) Solano testified that Montalvo did not mention anything to him 12 about Machuca being involved with drugs. (See id.) Solano testified that Montalvo 13 also told him that Pacheco had gone to pick up Machuca's container, but did not 14 because he "said something about it smelled bad." (Id. at 487.) Solano asked if that 15 meant that there were drugs in the Container and Montalvo told him that it did not. 16 (See id. at 549 .) Solano agreed to pick up Machuca's Container, in part because he 17 would earn the normal fee of $600, and in part because the Container was at Red — 14 — 1 Hook, where Solano was headed to deliver an empty container. (See id. at 480-81 , 2 490.) 3 Solano acknowledged that after interview # 1 he had asked to have a 4 second interview with the officers. However, he testified that he did not in interview 5 # 2--and did not ever--tell his interrogators that he knew there were drugs in the 6 Container before he drove it from the Terminal. (See, e.g., id. at 504, 505, 507-08 .) 7 Solano testified that he again told his questioners that Montalvo told him 8 to be careful with Machuca because it was difficult to get Machuca to pay, and that 9 Montalvo did not indicate there was a problem about drugs; he testified that 10 Montalvo said he had never heard of Machuca being involved with drugs. (See id. 11 at 507, 486, 549.) Solano told the officers that he "more or less realized" that the 12 Container likely contained drugs only after he left Red Hook and saw that certain cars 13 were following him. (Tr. 507-08; see, e.g., id. at 499 (Solano testified that he "really 14 realized it in Manhattan" while driving up First Avenue; "[m]y truck is slow, and 15 everyone else was passing me by, except them.").) 16 Solano also denied that he had told the officers that he had transported 17 drugs knowingly for anyone else in the past. He had instead described "rumors" that 18 he had heard about a man called "Lenin" [sic] being involved in drugs; and though — 15 — 1 he had transported containers for Lenin, that had been "[l]ong before" he heard those 2 rumors. Solano said he told the officers that the cargoes he transported for Lenin 3 never included drugs so far as he knew. (Tr. 510, 537.) And while he had also 4 mentioned a person named Tyrone, he had not said or meant to imply that Tyrone 5 was involved in drug smuggling. (See id. at 511 .) 6 Solano also called as trial witnesses Machuca and Montalvo. Machuca, 7 the owner of an import-export company, testified that he had no idea that there were 8 drugs in the Container and that he never told Solano that there were drugs in the 9 Container. Montalvo testified that when Pacheco told him the Container job smelled 10 bad, he thought Pacheco was referring to Machuca's slow payment methods. (See id. 11 at 432.) Montalvo testified that he had told Solano about Pacheco's refusal to pick up 12 the Container for Machuca, and had given Solano the caveat about Machuca because 13 "Machuca is famous in the Bronx for not paying in a timely fashion." (Id. at 429.) 14 3. Evidence as to June 7 Miranda Warnings (or Not) 15 Solano also testified that on the evening of June 7, the officers did not 16 give him any Miranda warnings. At interview # 2 they asked whether he would allow 17 them to look in his cellphone, and he agreed; he signed a consent form for that search, — 16 — 1 which the government had produced (see Tr. 174). However, Solano testified that no 2 one told him that evening that, inter alia, he had the right to talk to an attorney, or the 3 right to remain silent, or that anything he said could be used against him in court. 4 (See id. at 502 .) 5 Barrois and Corvi, in contrast, testified that Barrois read Miranda 6 warnings to Solano in interview # 1, that Solano said he understood his rights, and 7 that he was willing to waive those rights. (See id. at 114, 324 .) Barrois also testified 8 that after he joined the second phase of interview # 2, "[w]e reminded [Solano] of his 9 rights and [Solano] said he still understood and waived them." (Id. at 192.) Both 10 Barrois and Corvi testified that Solano signed a form stating that Miranda warnings 11 had been read to him and waiving his rights. (See id. at 173, 325 .) However, neither 12 was able to say where that form was filed. 13 Etienne did not give Solano Miranda warnings when he began interview 14 # 2 (see id. at 381 ); he testified that he thought he had asked Barrois whether Solano 15 had received the warnings--until he was reminded that at that time he had been 16 unable to find Barrois. (See id. at 380 .) He then recalled that after interview # 1 either 17 Barrois or Corvi had reported to him on that interview, saying "that [Solano] didn't 18 say much. He waived but he didn't say much." (Id. at 381.) — 17 — 1 Etienne testified that it was routine procedure for HSI agents to retain a 2 signed Miranda waiver form for the investigative file as "an important piece of 3 evidence in the case." (Id. at 371). However, he did not remember whether he had 4 ever seen a signed waiver form from Solano (see id. at 381-82 ), and the government 5 was unable to produce any written Miranda waiver signed by Solano on June 7. 6 B. The Jury Instructions and the Verdicts 7 Prior to trial, Solano submitted proposed jury instructions to the trial 8 court, including two adapted from United States v. Gaines, 457 F.3d 238 (2d Cir. 2006) 9 ("Gaines"), with respect to assessment of witness credibility and the testimony of a 10 defendant: 11 You are to decide whether the testimony of each witness was 12 truthful and accurate, in whole, in part, or not at all, and you are 13 to decide what weight, if any, to give to each witness's testimony. 14 In evaluating each witness's testimony, you may consider, among 15 other things, the witness's intelligence; the ability and opportunity 16 the witness had to see, hear or know the things that the witness 17 testified about; the witness's memory; any interest, bias, or 18 prejudice the witness may have had; the manner of the witness 19 while testifying; and the reasonableness of the witness's testimony 20 in light of all the evidence in the case. — 18 — 1 (Defendant's Requests To Charge, Request No. 3 (citing Gaines, 457 F.3d at 249 n.8).) 2 As to the trial testimony of a defendant, Solano proposed the following instruction: 3 In a criminal case, the defendant never has a duty to testify or 4 come forward with any evidence. The reason is that, as I have 5 told you, the defendant is presumed innocent and the government 6 at all times has the burden of proof beyond a reasonable doubt. 7 But, if he chooses, the defendant also has the right to testify and 8 to take the witness stand on his own behalf. In this case, the 9 defendant decided to testify, like any other witness, and he was 10 subject to cross-examination, like any other witness. You should 11 examine and evaluate the testimony of the defendant just as you 12 would the testimony of any witness. 13 (Defendant's Requests To Charge, Request No. 9 (citing Gaines, 457 F.3d at 249 n.9).) 14 Prior to the end of the trial, the district court informed the parties of the 15 substantive aspects of its proposed instructions, i.e., the elements of the charged 16 offenses; and it provided a list of the more procedural aspects it would address, such 17 as burden of proof and presumption of innocence, but it did not provide the text of 18 those topics. In a charging conference, the court stated generally that it would 19 "include a charge about the defendant testifying" (Tr. 596); but there was no 20 discussion of the content of that charge. Nor was there any discussion of the 21 language proposed in Solano's Requests Nos. 3 and 9. The court never mentioned — 19 — 1 Requests Nos. 3 and 9; and Solano's attorney never asked whether the court intended 2 to give those requested instructions. 3 On the final day of trial, without having given the parties the text of its 4 planned procedural instructions, the court charged the jury in pertinent part as 5 follows with respect to assessments of witness credibility: 6 [I]n evaluating the credibility of the witnesses, you should take 7 into account evidence that the witness who testified may benefit 8 in some[ ]way in the outcome of the case. Such an interest in the 9 outcome creates a motive on the part of the witness to testify 10 falsely, may sway the witness to testify in a way that advances his 11 own interest. Therefore, if you find that any witness who's [sic] 12 testimony you are considering may have an interest in the outcome of 13 this trial, then you should bear that factor in mind when evaluating the 14 credibility of his or her testimony and accept it with great care. 15 Now, this is not to suggest that every witness who has an 16 interest in the outcome of the case will testify falsely. There are 17 many people who no matter what their interest . . . in the outcome 18 [of] a case may be would not testify falsely. It is for you to decide 19 based on your own perceptions and common sense to what 20 extent, if at all, the witness's interest has affected or colored his or 21 her testimony. 22 (Tr. 673-74 (emphases added).) With respect to Solano's testimony, the court 23 instructed: 24 The defendant was not obligated to call witnesses on his behalf, 25 nor was he obligated to testify on his behalf. But he was 26 permit[ted] to do so. In this case the defendant decided to testify. — 20 — 1 It is the prosecution's burden to prove the defendant guilty 2 beyond a reasonable doubt. That burden remains with the 3 prosecution throughout the entire trial and never shifts to the 4 defendant. The defendant is never required to prove that he is 5 innocent. 6 (Tr. 675.) When the court, after concluding its instructions, asked whether the parties 7 had any problems with the charge, both sides said they did not. (See id. at 701.) 8 The jury found Solano not guilty of conspiring to distribute and possess 9 with intent to distribute cocaine, but found him guilty of attempted possession of 10 cocaine with intent to distribute. He was sentenced principally to 42 months' 11 imprisonment, to be followed by a two-year term of supervised release. 12 II. DISCUSSION 13 On appeal, acknowledging that he had not objected to the trial court's 14 jury charge on assessment of the credibility of persons who testified at trial, Solano 15 contends that in the context of this trial, in which he testified, the court's instructing 16 the jury that "any witness who[] . . . ha[s] an interest in the outcome of this trial" has 17 "a motive . . . to testify falsely" (Tr. 673) constituted plain error. For the reasons that 18 follow, we agree. — 21 — 1 A. Plain-Error Review 2 In order to be entitled to normal appellate review of a jury instruction, 3 a party must make a proper objection "before the jury retires to deliberate." Fed. R. 4 Crim. P. 30(d). A mere "request for an instruction before the jury retires" does not 5 "preserve an objection to the instruction actually given by the court." Jones v. United 6 States, 527 U.S. 373, 388 (1999). However, an unpreserved objection may be reviewed 7 on appeal if it is "[a] plain error that affects substantial rights." Fed. R. Crim. P. 52(b). 8 Under Rule 52(b), 9 "before an appellate court can correct an error not raised at trial, 10 there must be (1) 'error,' (2) that is 'plain,' and (3) that 'affect[s] 11 substantial rights.' If all three conditions are met, an appellate 12 court may then exercise its discretion to notice a forfeited error, 13 but only if (4) the error 'seriously affect[s] the fairness, integrity, 14 or public reputation of judicial proceedings.'" 15 United States v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014) ("Groysman") (quoting 16 Johnson v. United States, 520 U.S. 461, 466-67 (1997) (which was quoting United States 17 v. Olano, 507 U.S. 725, 732 (1993))). The burden is on the appellant to meet this 18 standard. See, e.g., United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004); Groysman, — 19 — 766 F.3d at 155 . — 22 — 1 An error affects substantial rights when it is prejudicial--that is, when 2 there is a "reasonable probability" that the error affected the outcome of the trial. 3 Dominguez Benitez, 542 U.S. at 81-82 (internal quotation marks omitted). This does not 4 mean that the defendant is required to show that he would more likely than not have 5 received a different verdict, see id. at 83 n.9; rather, the standard is met if the error 6 "'undermines confidence in the outcome of the trial,'" Groysman, 766 F.3d at 157 7 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). 8 B. Witness Credibility Instructions in Criminal Cases 9 Proceedings in criminal cases are constrained by several bedrock 10 constitutional principles. One is that a defendant has the right to, but is not required 11 to, testify in his own defense at trial. Another is that the defendant is presumed 12 innocent until proven guilty. Guided by these axioms, this Court in Gaines, 457 F.3d 13 238 , and several cases since Gaines, has found error in various formulations of trial 14 court instructions that made inroads into these fundamental principles. 15 In Gaines, the trial judge instructed the jury, in pertinent part, as follows: 16 "The defendant in a criminal case never has any duty to 17 testify or come forward with any evidence. This is because, as I've 18 told you, the burden of proof beyond a reasonable doubt remains — 23 — 1 on the government at all times, and Mr. Gaines is presumed 2 innocent. 3 "In this case Mr. Gaines did testify and he was subject to 4 cross-examination like any other witness. Obviously, the defendant 5 has a deep personal interest in the result of his prosecution. This 6 interest creates a motive for false testimony and, therefore, the 7 defendant['s] testimony should be scrutinized and weighed with care. 8 You should examine and evaluate his testimony just as you would 9 the testimony of any witness with an interest in the outcome of 10 this case. In appraising the defendant's credibility you may take 11 that into account. 12 "It by no means follows, however, that simply because a person 13 has a vital interest in the end result he is not capable of telling a truthful 14 and straightforward story. It is for you to decide to what extent, if 15 at all, the defendant's interest has affected or colored his 16 testimony." 17 457 F.3d at 242 (emphases ours). In assessing this instruction, we recognized the fact 18 that some witnesses, including some defendants, would have a motive to testify 19 falsely; "[i]ndeed, in a perfect world, where prosecutors charged only the guilty, 20 defendants would always have a motive to testify falsely." Id. at 246 (emphasis 21 omitted). But we pointed out that 22 an instruction that the defendant has a motive to testify falsely 23 undermines the presumption of innocence. In this regard, there is an 24 important distinction between a "motive to lie" instruction and an 25 instruction that a defendant has a deep personal interest in the case. A 26 defendant has a deep personal interest in the outcome of a trial 27 whether or not he is guilty. Thus, th[at] instruction, though — 24 — 1 unnecessary and potentially prejudicial . . . is at least always true. 2 But a defendant does not always have a motive to testify falsely. An 3 innocent defendant has a motive to testify truthfully. 4 Id. (emphases added). 5 Accordingly, in Gaines we expressly "denounce[d] any instruction, . . . 6 that tells a jury that a testifying defendant's interest in the outcome of the case creates 7 a motive to testify falsely." Id. We concluded that 8 in future cases, district courts should not instruct juries to the effect that 9 a testifying defendant has a deep personal interest in the case. Rather, 10 a witness's interest in the outcome of the case ought to be 11 addressed in the court's general charge concerning witness 12 credibility. If the defendant has testified, that charge can easily be 13 modified to tell the jury to evaluate the defendant's testimony in the 14 same way it judges the testimony of other witnesses. 15 Id. at 249 (footnote omitted) (emphases added). 16 A year later, in United States v. Brutus, 505 F.3d 80 (2d Cir. 2007) 17 ("Brutus"), we considered the following district court instructions: 18 "The defendant is on trial only for the crimes charged in the 19 indictment and for nothing else. And although presumed 20 innocent and because she is presumed innocent, a defendant is not 21 obligated to testify on her own behalf. She is not obligated to call 22 any witnesses or present any evidence on her own behalf. But a 23 defendant may testify on her [own] behalf and this defendant did 24 so. — 25 — 1 "A defendant who does testify on her own behalf obviously 2 has a deep personal interest in the outcome of her prosecution. It's fair 3 to say that the interest which a defendant has in the outcome of the case 4 is an interest which is possessed by no other witness. And such an 5 interest creates a motive to testify falsely. 6 "And in appraising the credibility of a defendant who 7 testified on her own behalf, you may take that into consideration. 8 However, and I want to say that with as much force as I can 9 muster, it by no means follows simply because a person has a vital 10 interest in the outcome of her trial that she is not capable of telling 11 a truthful and straightforward story. The defendant's vital interest 12 in the outcome of her case is not inconsistent with her ability to tell the 13 truth. It's for you to decide what extent[,] if at all, her interest in 14 the outcome of this trial has affected the color of her testimony." — 15 — 505 F.3d at 85 (emphases ours). 16 We noted that "[u]nder our system of criminal justice, it is 'axiomatic and 17 elementary' that defendants are entitled to a presumption of innocence," id. (quoting 18 Coffin v. United States, 156 U.S. 432, 453 (1895)), and that "'[t]o implement the 19 presumption,' . . . 'courts must be alert to factors that may undermine the fairness of 20 the fact-finding process,'" Brutus, 505 F.3d at 85 (quoting Estelle v. Williams, 425 U.S. 21 501, 503 (1976)). We observed that, accordingly, in Gaines "we established a 22 prophylactic rule that it is error to instruct the jury that a defendant's interest in the 23 outcome of the case creates a motive to testify falsely," Brutus, 505 F.3d at 87 (emphases — 26 — 1 added), and we concluded that the charge in Brutus was error, especially given the 2 reference to the defendant's "'deep personal interest,'" id. 3 Although the charge in Brutus was error, and the defendant's objection 4 had been properly preserved, we concluded that the error was beyond a reasonable 5 doubt harmless, given, inter alia, that it was "not a close case" and that the defendant's 6 trial testimony was "manifestly incredible." Id. at 89 . 7 In United States v. Mazza, 594 F. App'x 705 (2d Cir. 2014) ("Mazza"), we 8 considered another jury instruction that was not meaningfully distinguishable from 9 those found impermissible in Gaines and Brutus. The trial court instructed that 10 "Dominick Mazza, as a defendant in this case, is considered an 11 interested witness. Such an interest in the outcome creates a motive to 12 testify falsely and may sway the witness to testify in a way that 13 advances self-interests. Therefore, if you find that any witness 14 whose testimony you are considering may have an interest in the 15 outcome of this trial, then you should bear that factor in mind when 16 evaluating the credibility of the testimony and accept it with great care." — 17 — Id. at 707-08 (emphases ours). We noted that to the extent that Gaines contained any 18 ambiguities, 19 in Brutus, we clarified that the impermissible instruction is not 20 tempered when the court "omits additional language specifically 21 cautioning the jury to carefully scrutinize and weigh the 22 defendant's testimony," nor when the court includes "other, more — 27 — 1 favorable language." 505 F.3d at 87 . The court's instruction violated 2 our mandate issued five years prior and was clearly erroneous. 3 Mazza, 594 F. App'x at 708 (emphasis added). 4 Although there had been no objection to the Mazza instruction in the 5 district court, relegating the defendant to review only for plain error, we concluded 6 that, as to two counts, that clearly erroneous instruction was prejudicial and 7 warranted relief. For example, as to a count charging Mazza with having made a 8 false statement, "[k]nowledge [wa]s an element of the offense charged," and it was 9 "the only such element at issue," id. at 709 . Mazza testified that he did not know the 10 relevant fact, and on appeal "the government" pointed to "no evidence--and we 11 f[ou]nd none--indicating or implying that Mazza had actual or constructive 12 knowledge." Id. Thus, we concluded that "the false statement count hinge[d] heavily 13 on Mazza's credibility, creating a reasonable probability that the erroneous instruction 14 affected the outcome of the trial on that count." Id. Accordingly, as to that count and 15 one other as to which the government faced a similar problem, we vacated the 16 convictions. 17 Most recently, in United States v. Mehta, 919 F.3d 175 (2d Cir. 2019) 18 ("Mehta"), the trial judge similarly instructed the jury in part that — 28 — 1 "[y]ou may consider the fact that a defendant's interest in the 2 outcome of the case creates a motive for false testimony, but it by no 3 means follows that a defendant is not capable of telling the truth." — 4 — Id. at 180 (emphases ours). We noted that this charge, which "undermined the 5 presumption of innocence, which is not only one of the most fundamental principles 6 of our criminal justice system, but also one of the principles most widely known and 7 understood by the public at large," id. at 183 , was "directly contrary to the law of this 8 Circuit," id. at 178 . Discussing Gaines and Brutus, we stated, 9 [w]e have repeatedly held, in no uncertain terms, that this charge 10 is forbidden; district courts may not tell juries that a testifying 11 defendant's personal interest in the outcome of a trial supplies a 12 motive to lie. 13 Mehta, 919 F.3d at 182 . We found that the error met the test for relief under plain14 error analysis. 15 Finally, in United States v. Munoz, 765 F. App'x 547 (2d Cir. 2019) 16 ("Munoz"), we considered the following slightly differently worded instruction: 17 "In evaluating credibility of the witnesses, you should take into 18 account any evidence that any witness who testified may benefit 19 in some way from the outcome of the case. Such an interest in the 20 outcome creates a motive to testify falsely and may sway a witness to 21 testify in a way that advances his or her own interests." Trial Tr. 22 2290:14-19 . . . . "You should not disregard or disbelieve that 23 testimony simply because a witness had or has such an interest, 24 but if you accept it, you should do so with great care." Trial Tr. — 29 — 1 2290:22-25. The district court further instructed that "Defendant 2 Jose Munoz chose to testify in this case. You should examine or 3 evaluate the his [sic] testimony just as you would the testimony of 4 any witness with an interest in the outcome of the case." Trial 5 Tr. 2294:7-10 (emphasis added). 6 Munoz, 765 F. App'x at 552 (first emphasis ours; other emphases in Munoz). 7 Although we were ultimately persuaded, in light of the government's 8 overwhelming evidence, that the instruction did not affect the defendant's substantial 9 rights, we concluded that the instruction was erroneous and was prohibited by our 10 Gaines-Brutus line of cases: 11 The logical implication of the district court's instructions is that 12 Munoz had a motive to testify falsely: if "an interest in the outcome 13 creates a motive to testify falsely," Trial Tr. 2290:16-17, and jurors 14 should assess Munoz's testimony as a "witness with an interest in 15 the outcome of the case," Trial Tr. 2294:8-10, then Munoz had an 16 interest in the outcome of the case that created a motive to testify 17 falsely. Thus, the district court did indirectly what we said in Brutus 18 and Gaines district courts cannot do directly: tell the jury that a 19 criminal defendant who testifies has a motive to testify falsely. While 20 the district court did heed our admonition to discuss a "a witness's 21 interest in the outcome of the case . . . in the court's general charge 22 concerning witness credibility," Gaines, 457 F.3d at 249 , the 23 instruction also skirted the spirit of Brutus and Gaines. 24 Munoz, 765 F. App'x at 552 (emphases added). — 30 — 1 C. The Present Case 2 We conclude that Solano satisfies the four-part Olano test for relief under 3 plain-error analysis in this case. First, there was error. The above cases make it clear 4 that the credibility charge given in the present case, which included the instruction 5 (a) that a witness's interest "in the outcome of the case . . . . creates a motive on the 6 part of the witness to testify falsely" (Tr. 673), and (b) that this applies to "any witness" 7 (id.), suffers the same substantive constitutional defect identified and prohibited by 8 Gaines and Brutus and their progeny. It is a matter of common sense that the 9 defendant in a criminal case has a profound interest in its outcome, see, e.g., Gaines, 10 457 F.3d at 244 ("a testifying defendant in a criminal trial has a personal interest in its 11 outcome that is as deep as it is obvious"); an instruction indicating to the jury that that 12 interest gives him a motive to testify falsely is contrary to the presumption of 13 innocence. 14 Second, the error here is "plain." Even if the holdings in Gaines, Brutus, 15 and Mazza--cases decided years prior to Solano's trial--had not sufficed to prohibit the 16 precise linguistic formulation used here, which imputes a motive to testify falsely to 17 "any" interested witness and thereby encompasses a testifying defendant, the 18 language used by the trial court here is virtually identical to that found erroneous in — 31 — 1 Munoz. Thus, the error in this linguistic formulation, if not plain at the time of 2 Solano's trial, is surely plain now. The fact that Munoz was decided subsequent to the 3 trial of Solano does not make the error less "plain," for "'it is enough that an error be 4 "plain" at the time of appellate consideration' for '[t]he second part of the [four-part] 5 Olano test [to be] satisfied.'" Henderson v. United States, 568 U.S. 266, 279 (2013) 6 (quoting Johnson, 520 U.S. at 468 ). 7 Third, the instruction was prejudicial. The trial as to the charge that 8 Solano attempted to possess cocaine with intent to distribute centered squarely on 9 whether Solano knew, before picking up the Container at Red Hook on June 7, that 10 the Container held drugs. As the government acknowledged in summation, after 11 noting aspects of the case as to which there was no substantial disagreement, "[w]hat 12 is in dispute is what the defendant knew." (Tr. 605.) And, as the government 13 continued, finding the knowledge element would turn squarely on assessments of 14 credibility because "[t]he defendant claimed that he didn't know the container he 15 moved had ever had drugs in it." The government argued, "that's just not believable." 16 (Id.) 17 This was indeed a credibility case, both as to what Solano knew--for, as 18 described in Part I.A.2.e. above, Solano testified that he did not know the Container — 32 — 1 had contained drugs--and, equally importantly, as to what he told the HSI task force 2 members as to the state of his knowledge, because the only direct evidence that he 3 had knowledge that the Container contained drugs came from the officer witnesses' 4 testimony that Solano expressly admitted to them that he had had that knowledge. 5 Solano testified that he never made any such statements. 6 Although the government argues that the testimony by the officer 7 witnesses that Solano admitted knowledge finds support in records found on his 8 cellphone and in inconsistencies in Solano's testimony as to, for example, when he 9 made various statements in his June 7 conversations with Dalrymple, there is 10 considerable circumstantial evidence in the record to support both Solano's testimony 11 that he did not know the Container contained drugs and his testimony that he did not 12 tell the officer witnesses that he did know. 13 Solano's testimony that when he picked up the Container he did not 14 know that it held drugs was certainly plausible. He had been given the job of getting 15 the Container only that morning, by Machuca, a man he had not worked for before; 16 and he was to deliver it to an address provided by Machuca. He agreed to pick up 17 the Container in part because he would earn the usual $600 for that job, and in part 18 because the Container was at Red Hook and Solano had an empty container he — 33 — 1 needed to return to Red Hook. Solano picked up the sealed Container and delivered 2 it to the address provided by Machuca. After making the delivery, Solano simply 3 departed. 4 Although Solano was advised by Montalvo that morning to be wary of 5 Machuca, Solano and Montalvo testified, respectively, that Solano did not understand 6 Montalvo to mean, and Montalvo did not in fact mean, that Machuca was involved 7 in drugs. 8 Machuca was one of the men at the delivery destination to receive the 9 Container in this HSI-controlled delivery. He testified at trial that he did not know 10 the Container had held drugs; and the government has pointed to no evidence that 11 Machuca was in fact involved with the drugs. Indeed, following the controlled 12 delivery on June 7, Machuca had been questioned by HSI and released. As Solano's 13 only contact with the Container was initiated by Machuca, and there was no evidence 14 that Machuca knew of the drugs, there was no evidence in these events to show that 15 Solano had such knowledge. 16 Further, although the government argued that Solano's contacts with 17 Dalrymple were indicative of his knowledge, they surely need not have been so 18 interpreted. Solano testified that when he arrived at the Red Hook Terminal to get — 34 — 1 the Container, he noticed a car that looked as if it might be a law enforcement 2 surveillance vehicle. That he might make such an observation was hardly 3 implausible. Barrois testified that in preparation for the controlled delivery, seven or 4 eight members of the HSI task force were parked in and around the Terminal--in cars 5 that, in his experience, "previously [had] been recognized as law enforcement cars." 6 (Tr. 103.) Nor was it implausible that Solano would wish to have reassurance that 7 such surveillance did not relate to the job he had just been given by someone with 8 whom he had no prior relationship; as described in Part I.A.1. above, Solano had 9 twice (in his 20 years of trucking thousands of cargoes) been questioned about drug 10 cargoes that he had transported unknowingly. Solano testified that on June 7, having 11 noticed possible law enforcement surveillance, he thus called Dalrymple, the HSI 12 officer with whom he had cooperated in 2014 and whose phone number he had been 13 given, seeking reassurance and giving Dalrymple the identification number of the 14 Container Machuca had asked him to pick up. And once on the road with the 15 Container, Solano texted Dalrymple the delivery address and the contact information 16 for Machuca. Solano's initiation of contact with, and furnishing of, inter alia, container 17 identification and destination information to, a law enforcement agent whose known 18 job focus was drug trafficking could easily be viewed by a jury as more consistent — 35 — 1 with Solano's professed innocent concerns than with his knowing he was about to 2 drive away with drugs. 3 As to the officer witnesses' testimony that Solano, in interview # 2 on 4 June 7, admitted that he knew before he picked up the Container that it contained 5 drugs, Solano testified that he had made no such admissions. The plausibility of that 6 denial too is supported by circumstantial evidence. Although, as described in Parts 7 I.A.2.a., b., c., and d. above, the officer witnesses testified that Solano expressly 8 admitted that he had known before leaving with the Container that it contained 9 drugs, they made no attempt to record those admissions. 10 Supervising Special Agent Etienne, who attended the first phase of 11 interview # 2 and testified that Solano made those admissions of knowledge, could 12 have made notes of such admissions. He did not. 13 Etienne testified that he immediately brought Barrois into the interview 14 room, "recapped" Solano's admissions, and instructed that Solano repeat the 15 admissions for Barrois. Etienne testified that he did so expressly for the purpose of 16 "mak[ing] sure everything [wa]s documented properly." (Tr. 366.) Barrois testified 17 that Solano did then admit, in his presence, knowing the Container contained drugs. 18 But despite Etienne's testimony that he told his agents to make sure there was proper — 36 — 1 documentation, there was none. Barrois admitted that he could have recorded 2 Solano's admissions by using his cellphone. He chose not to. Barrois had made notes 3 of Solano's first--concededly innocuous-- interview, and he could have made written 4 notes of what he testified were, in the second interview, Solano's self-incriminating 5 admissions of knowledge. Barrois made no such notes. Or the officers could have 6 asked Solano to make any admissions in writing. They chose not to. 7 Apparently, the only officer witness who took any notes in interview 8 # 2--the only interview in which it is claimed that Solano made any admissions of 9 knowledge--was Corvi. Corvi, present throughout interview # 2, (a) apparently heard 10 whatever admissions Solano made to Etienne, (b) apparently heard Etienne "recap[]" 11 the Solano admissions Etienne described at trial and instruct that they be 12 documented, and (c) apparently heard whatever admissions Solano then made to 13 Barrois. But Corvi's notes say nothing whatsoever to indicate that Solano ever 14 admitted knowing that drugs were in the Container. 15 Given the serious issues concerning the credibility of Solano's denial that 16 he had known there were drugs in the Container and the credibility of his denial that 17 he ever said that he did have that knowledge, as against the credibility of the officer 18 witnesses' undocumented testimony that Solano admitted such knowledge, we — 37 — 1 conclude that there is a reasonable probability that the motive-to-testify-falsely error 2 prejudicially affected Solano's substantial rights. 3 Finally, it is not lost on us that the government, in its rebuttal summation 4 on the question of whether Miranda warnings had been given, posed a hypothetical 5 that could easily be seen as having disturbing applicability to the question of whether 6 Solano told the officers that he had known the Container held drugs. Addressing the 7 conflict between the officers' testimony that Solano had been given Miranda warnings 8 on June 7 and had waived his Miranda rights in writing, and Solano's testimony that 9 he in fact was not given Miranda warnings and the fact that the government was 10 unable to produce any such written waiver, the government argued that "if 11 the[ officer witnesses] had been trying to make up a story, they would simply have said they 12 had given him . . . oral" Miranda warnings (Tr. 655 (emphases added)). On the issue of 13 knowledge, the officer witnesses testified that Solano admitted to them that he had 14 known the Container contained drugs; they testified that this was an important piece 15 of information in a drug investigation; they testified that they could have recorded 16 such an admission on a cellphone that was available, or that they could have asked 17 Solano to make the admission in writing. They did neither. Instead, they simply said 18 that his admissions were oral. — 38 — 1 Given the serious credibility questions posed in this case, we conclude 2 that the error in the district court's instruction, eroding the presumption of innocence 3 to which Solano was entitled, seriously affects the fairness, integrity, or public 4 reputation of judicial proceedings. We accordingly vacate his conviction. 5 CONCLUSION 6 We have considered all of the government's arguments in support of 7 affirmance and have found them unpersuasive. The judgment of conviction is 8 vacated, and the matter is remanded to the district court for further proceedings not 9 inconsistent with this opinion. — 39 —