In United States v. Tucker, No. 18-181(L) (2d Cir. June 2, 2020) (Leval, Pooler, and Parker), the Second Circuit unanimously affirmed Muir’s and Tucker’s convictions arising from their operation of an illegal payday lending scheme.
The central issue on appeal concerned the jury instructions regarding “willfulness.” The trial judge instructed the jury with respect to several counts that the defendants acted willfully if they knew of the high interest rates being charged to borrowers, even if the defendants believed the lending was lawful. The defendants, however, failed to object to the jury instructions after they were given, as generally required by Fed. R. Crim. P. 30. Thus, the Circuit held, the defendants’ had to satisfy the demanding “plain error” standard to prevail on appeal.
The Circuit ruled that, even if the challenged “willfulness” instruction was erroneous—an issue it did not resolve—any error was not reversible plain error. The Court concluded that the jury was properly instructed (for purposes of conspiracy) that willfulness required knowledge of illegality, and that the evidence of the defendants’ knowledge of illegality on all counts was “overwhelming.” Accordingly, any error did not affect the defendants’ “substantial rights.”
For practitioners, Tucker serves as a reminder about the general need to renew objections to jury instructions, with specificity, after they are given. Objecting at the charge conference alone is usually not sufficient.