PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 21-2115 UNITED STATES OF AMERICA v. FRANK NUCERA, JR., Appellant _____________________________________ On Appeal from the United States District Court for the District of New Jersey (District Court No.: 1-17-cr-00532-001) District Judge: Hon. Robert B. Kugler _____________________________________ Argued November 7, 2022 (Filed May 5, 2023) Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges. Rocco C. Cipparone, Jr.,Esq. [Argued] Rocco C. Cipparone, Jr., Law Offices 157 Bridgeton Pike Suite 200-320 Mullica Hill, NJ 08062 Counsel for Appellant Sabrina G. Comizzoli, Esq. [Argued] Mark E. Coyne, Esq. Office of United States Attorney 970 Broad Street Room 700 Newark, NJ 07102 Counsel for Appellees _________ OPINION OF THE COURT _________ RENDELL, Circuit Judge. Trial evidence often divides jurors. In a trial about race with jurors of different races, that division can be explosive. Frank Nucera, Jr. says those divisions ran so deep in his trial that they tainted the verdict, and he seeks a new trial or an evidentiary hearing to probe what happened. To support his claim, Nucera offers only post-verdict affidavits from jurors who say they experienced racial vitriol, intimidation, and other misconduct that occurred during the jury deliberations. 2 When parties challenge a verdict, Federal Rule of Evidence 606(b) bars a court from considering a juror’s statement or affidavit unless it satisfies either an exception in the Rule or a constitutional exception created by the Supreme Court in Peña-Rodriguez v. Colorado, 580 U.S. 206 (2017), for evidence of racial bias. But the latter exception is narrow and specific: it requires a clear statement that a juror voted for conviction based on racial animus toward, or stereotypes about, the defendant. Nucera was charged with committing a hate crime, depriving another of his civil rights, and making false statements to the FBI, all associated with actions he took as a police officer arresting a man named Timothy Stroye. His evidence of purported juror misconduct shows heated deliberations with racial tensions playing a major role. Credibility determinations were crucial, and jurors divided deeply over whom and what to believe. But none of his evidence satisfies the exceptions in Rule 606(b). Nor does it show that what happened here fits the exception in Peña- Rodriguez. Lacking the clear statement that Peña-Rodriguez requires, Nucera urges that we should widen the exception to include the conduct here. That we cannot do. So we will affirm the District Court’s denial of Nucera’s motion for a new trial, and an evidentiary hearing, based on juror misconduct. We will also affirm the District Court’s ruling that limited Nucera’s use of the victim’s out-of-court statement and 3 the Court’s later instructions to the jury about unanimity.1 But we agree with Nucera that the District Court erred in sentencing him, so we will vacate the District Court’s sentencing order and remand for further proceedings consistent with this opinion. I. NUCERA ’S TRIAL A. Jury Selection When the trial began, the District Court conducted voir dire of potential jurors and briefly described …
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