In United States v. Solano, the Circuit (Kearse, joined by Calabresi and Carney) held that the district court’s interested witness instruction—namely, that “any” witness with “an interest in the outcome” of the trial had “a motive to testify falsely”—was plain error requiring vacatur of the conviction, because the defendant had testified and the instruction violated the presumption of innocence. Mr. Solano was represented on appeal by our own Daniel Habib.
Solano, a commercial truck driver, was arrested after picking up and delivering a sealed shipping container that had held cocaine and was now under surveillance. He was charged with attempting to distribute a controlled substance. At trial, the sole disputed issue was knowledge. The government’s principal proof came from three law enforcement officers who testified that, in a post-arrest interview, Solano had confessed knowledge. Solano, for his part, testified that he did not know that the container had held cocaine, and he denied making the inculpatory confession. Because the officers made no contemporaneous documentation of Solano’s interview (no recording, no relevant notes), the case turned on credibility.
The district court (DeArcy Hall) gave the following interested witness instruction:
In evaluating the credibility of the witnesses, you should take into account evidence that the witness who testified may benefit in some[ ]way in the outcome of the case. Such an interest in the outcome creates a motive on the part of the witness to testify falsely, may sway the witness to testify in a way that advances his own interest. Therefore, if you find that any witness who’s [sic] testimony you are considering may have an interest in the outcome of this trial, then you should bear that factor in mind when evaluating the credibility of his or her testimony and accept it with great care.
This is the “Interest in Outcome” instruction (No. 7–3) from the Sand treatise. The defense did not object and Solano was convicted.
On appeal, Solano argued that the charge was plain error under United States v. Gaines, 457 F.3d 238 (2d Cir. 2006), which holds that instructing a jury that a testifying defendant’s interest in the outcome creates a motive to lie violates the presumption of innocence by assuming the defendant’s guilt. (As Gaines explains, a defendant only has a motive to lie if he is guilty: an innocent defendant has a motive to tell the truth.) The Circuit agreed. Even though the instruction did not single Solano out (as had the instruction in Gaines), charging the jury that “any witness” with an interest in the outcome—which, as a matter of “common sense,” includes the defendant—has a “motive … to testify falsely” “suffers the same substantive constitutional defect identified and prohibited by Gaines.” Slip op. at 31. The error was plain in light of United States v. Munoz, 765 F. App’x 547 (2d Cir. 2019), which had disapproved a similar instruction. And the error was prejudicial because this was a credibility case with no documentary proof from either side on the only contested question: Solano’s knowledge.
The takeaway for practitioners is straightforward: If your client is testifying, request the instructions in Gaines, 457 F.3d at 249 nn.8–9, and object to any formulation that suggests, in any way, that your client’s interest in the outcome creates a motive to lie. In particular, note that, although the Circuit does not say so, the instruction found plainly erroneous here came verbatim from Sand—which is just another reminder that Sand is not the law.