United States v. Fabian, No. 22-1247-cr (2d Cir. Mar. 25, 2026) (Livingston, Lynch (writing), Menashi, Circuit Judges

The Second Circuit affirmed Fabian’s conviction and 15-year sentence for conspiring to distribute crack cocaine. Fabian raised a host of challenges to his conviction and sentence, but the panel placed at “the forefront of this appeal” the district court’s response to a jury note asking for exhibits “link[ing]” Fabian to an incriminating contact name or alias stored in a co-conspirator’s messaging device. The panel found that the trial court did not abuse its discretion in answering that inquiry itself and supplying to the jury exhibits and testimony that the court deemed to meet the jury’s “link” request. That ruling is discussed here.

 

Relevant Facts

After a day of deliberations, the jury sent the court a note. It asked for several specific items by exhibit number, including drug ledgers seized from Fabian and records from a Blackberry messaging device used by co-conspirator Carlos Suriel. The note then asked for something more open-ended — “any other exhibits that link Fabian [to the name] Alofoke Music.” “Alofoke Music” was the contact label under which Suriel had stored his drug supplier in his Blackberry. Tying that monicker to Fabian was damning.

 

Defense counsel proposed two responses. First, that the court ask the jury to clarify what it meant by “link” — to make a more specific evidentiary request. Second, alternatively, that the court send back all admitted exhibits and let the jury sort through them itself. Counsel’s concern was straightforward: if the court itself selected which materials to send in answer to a “linking” question, it would be implicitly endorsing the premise that those items in fact performed the linking function.

 

The district court rejected both proposals. It was “loath[]” to ask the jury to clarify, fearing intrusion into “[the jury’s] deliberative process.” And it declined to send everything, on the view that doing so risked overwhelming the jury with irrelevant material.

 

Instead, the court provided the specifically requested exhibits and in response to the “link” portion of the note, added further material of its own selection — photocopies of items seized during Fabian’s arrest, Department of Motor Vehicle records, and testimony from a detective on the case and from a witness familiar with the messaging service. The court did not use the word “link” in its response, however, and did not identify any of the additional material as showing a connection. The court also reminded the jurors that they were “the sole deciders of the facts” and that their recollection of the evidence “control[led].” The jury convicted the next day.

 

The Panel’s Ruling

On appeal, Fabian argued that by curating a packet of materials in response to a request for “linking” evidence, the district court injected itself into the jury’s deliberations and effectively endorsed the government’s theory that “Alofoke Music” was Fabian. The panel rejected the challenge. Reviewing for abuse of discretion, see United States v. Khalupsky, 5 F.4th 279, 294–95 (2d Cir. 2021), it held the response “more than adequate.” The court emphasized three points – as well as Fabian’s concession on germaneness.

 

First, the district court’s reminder that the jurors alone were “the sole deciders of the facts” blunted any risk that they would read the curated packet as a judicial endorsement.

 

Second, the court was permissibly cautious in rejecting defense counsel’s requests: asking the jury to clarify risks intruding on deliberations, and a district court “retains considerable latitude . . . in rejecting that which is cumulative, and in requiring that which is to be brought to the jury’s attention to be done so in a manner least likely to confuse that body.” Hamling v. United States, 418 U.S. 87, 127 (1974). Even if “a different court may have opted to proceed with one of Fabian’s alternatives,” Judge Lynch explained, “that does not render this district court’s decision unreasonable.”

 

Third, sending more than the jury specifically requested was within the court’s discretion because the additional material “contextualized the evidence that was directly responsive,” and a court may “have the jury review other evidence relating to the same factual issue” as that about which the jury asked. United States v. Gentile, 525 F.2d 252, 260–61 (2d Cir. 1975). Reversal for supplying additional materials, the panel noted, is required only where the submission reflects judicial prejudice or “leads to a biasing of the record.” Id. at 261.

 

Critical to the panel’s prejudice analysis was Fabian’s concession that the additional evidence the district court gave the jury was germane to its request. He never contested that the curated materials failed to bear on the connection between him and “Alofoke Music”; he argued only that the court should not have done the curating. With germaneness conceded, the panel found no “reasonable probability that the error affected the outcome.” United States v. Dussard, 967 F.3d 149, 156 (2d Cir. 2020). Nothing in the record suggested that the response was a “potent influence” on, or “the decisive word” to, the jury. United States v. Kopstein, 759 F.3d 168, 172–73 (2d Cir. 2014).

 

Practitioner’s Notes

Fabian should be read narrowly, and trial judges should treat its approach as something to avoid rather than a template.

 

First, the panel’s holding rests on a particular and unusual concession. When a jury asks for evidence that “links” two things, it is asking a question that is partly evidentiary and partly inferential — and the inferential leap is precisely what the jury is supposed to make on its own. A judge who answers by selecting which exhibits and testimony to add to the requested set unavoidably makes a judgment about what counts as linking evidence. The act of pulling specific items in response to a “linking” request thus can be read by jurors as the court’s tacit confirmation that those items in fact perform that function.

 

The jury asked, in effect, “what links Fabian to the incriminating information found on the co-conspirator’s phone?” And the court answered, “here – these exhibits and testimony.” That comes close to the marshaling-as-advocacy the Court has warned against. See United States v. Tourine, 428 F.2d 865, 869 (2d Cir. 1970) (court must not “act as an advocate in advancing factual findings of [its] own”). It can also crowd out the negative inference — the absence-of-link inference — on which defendants often rely at trial.

 

Second, the case is distinguishable because Fabian conceded that the materials the court added were germane. That concession took off the table the worst version of the hazard — a court sending back materials the defense contends do not link the defendant to inculpatory evidence.

 

Where germaneness is contested — where the inferential bridge between, say, a phone alias and a defendant is disputed — Fabian does not control, and a curated response to a “link” note risks placing a judicial thumb on the inference the jury must independently draw. Defense counsel facing such a note should object, articulate why the court’s selected materials do not establish the link the jury is asking about, and press for one of the alternatives Fabian’s counsel proposed (a clarifying question to the jury or transmission of all admitted exhibits with no judicial sorting).