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United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee, v. Yesenia Nunez TAPIA, Defendant-Appellant.


Decided: August 24, 2020

Present: DENNIS JACOBS, ROSEMARY S. POOLER, Circuit Judges. BRENDA K. SANNES,1 District Judge. For Appellant: Jeremy F. Orden, New York, N.Y. For Appellee: Kevin Trowel, Assistant United States Attorney, for Seth D. DuCharme, Acting United States Attorney, Eastern District Of New York, Brooklyn, N.Y.


Defendant-Appellant Yesenia Nunez Tapia moves to recall this Court's May 18, 2020 mandate, which affirmed the judgment of conviction entered on January 3, 2019, in the United States District Court for the Eastern District of New York (DeArcy Hall, J.), following Tapia's conviction by jury trial for cocaine importation and possession offenses. Tapia also moves for en banc rehearing of her appeal in light of United States v. Solano, 966 F.3d 184 (2d Cir. 2020), which held that the same jury instruction used in Tapia's trial violated the defendant's constitutional right to the presumption of innocence. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

“This court has an inherent power to recall its mandate, subject to review for abuse of discretion.” Bottone v. United States, 350 F.3d 59, 62 (2d Cir. 2003). Though “[o]ur power to recall a mandate is unquestioned,” we have explained that “this power is to be exercised sparingly” in order to protect the finality of judicial proceedings and is “reserved for exceptional circumstances.” Sargent v. Columbia Forest Prod., Inc., 75 F.3d 86, 89 (2d Cir. 1996) (internal quotation marks and citations omitted). We consider four factors in evaluating whether to recall a mandate, including: “(1) whether the governing law is unquestionably inconsistent with the earlier decision; (2) whether the movant brought to the Court's attention that a dispositive decision was pending in another court; (3) whether there was a substantial lapse in time between the issuing of the mandate and the motion to recall the mandate; and (4) whether the equities strongly favor relief.” Stevens v. Miller, 676 F.3d 62, 69 (2d Cir. 2012) (internal quotation marks and citation omitted).

We conclude that these factors weigh in favor of recalling our mandate here. Tapia did not bring Solano to this Court's attention before we decided her appeal. Nevertheless, Solano—now the governing law in this Circuit—unquestionably contradicts our earlier decision in this case upholding the district court's jury instruction as to the credibility of witnesses with an interest in the outcome of the case. Solano held that the same interested witness charge at issue in this case unconstitutionally undermined the defendant's right to the presumption of innocence. See Solano, 966 F.3d at 197. Further, Tapia moved to recall our mandate less than three months after it issued, and less than two weeks after Solano was decided. Finally, equities strongly favor the relief that Tapia seeks, because the defendants in both cases were similarly situated. Solano considered the same jury instruction from the same judge who presided over Tapia's trial, and as in Tapia's case, the Solano defendant's trial testimony was relevant to the disputed issue of whether the defendant knew that an item he transported contained cocaine. We therefore grant Tapia's motion to recall this Court's mandate.

Tapia also moves for en banc rehearing of her appeal in light of Solano. En banc rehearing is not necessary to resolve Tapia's appeal, however, because Solano is sufficient to resolve the issue on which Tapia seeks rehearing in her favor. As the defendant in Solano did, Tapia raises a challenge to the jury instruction for the first time on appeal as violating her presumption of innocence. We therefore review the jury instruction for plain error. See Fed. R. Crim. P. 52(b). Under the plain error standard, the defendant has the burden to show that there is “(1) error, (2) that is plain, and (3) that affects substantial rights.” Solano, 966 F.3d at 193 (internal quotation marks, brackets, and citation omitted). “An error affects substantial rights when it is prejudicial—that is, when there is a reasonable probability that the error affected the outcome of the trial.” Id. (internal quotation marks and citation omitted). If the defendant meets this burden, then we may “notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks, brackets, and citation omitted).

The interested witness charge used in Tapia's trial “impute[d] a motive to testify falsely to ‘any’ interested witness and thereby encompasse[d] a testifying defendant,” id. at 197, was identical to the charge used in Solano, and therefore was plainly erroneous. We further conclude that the erroneous jury instruction affected Tapia's substantial rights, and that this error seriously affected the fairness of the judicial proceedings. Whether Tapia knew that the bottle she transported to the United States contained cocaine was the key issue at trial, and Tapia was the sole defense witness. Tapia's credibility was squarely at issue, and the government repeatedly challenged Tapia's credibility during its summation. We conclude based on Solano and the circumstances of Tapia's trial that the the district court's interested witness charge was plainly erroneous, and merits vacatur of Tapia's conviction. For the reasons set out in our previous summary order, however, we leave undisturbed the resolution of Tapia's other arguments on appeal. See United States v. Tapia, 799 F. App'x 80, 82 (2d Cir. 2020).

Accordingly, we hereby GRANT Tapia's motion to recall this Court's mandate, VACATE the judgment of the District Court, DENY as moot Tapia's motion for an en banc rehearing, and remand for further proceedings consistent with this opinion.

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