In the United States Court of Appeals FOR THE SECOND CIRCUIT

AUGUST TERM 2022 No. 22-1289

UNITED STATES OF AMERICA, Appellee,

v.

RICKEY JOHNSON, AKA SEALED DEFENDANT 1, AKA NEIL DAWN DEFARREN, Defendant-Appellant.

On Appeal from the United States District Court for the Southern District of New York

ARGUED: JUNE 6, 2023 DECIDED: SEPTEMBER 6, 2024

Before: CHIN and MENASHI, Circuit Judges, and ENGELMAYER, Judge. *

* Judge Paul A. Engelmayer of the United States District Court for the Southern District of New York, sitting by designation. Defendant Rickey Johnson was convicted of making threatening interstate communications and of threatening United States officials. He argues that five purported errors over the course of the trial require vacatur of his convictions: (1) the district court proceeded with eleven jurors prior to deliberations and without stipulation from the parties, (2) the district court dismissed two jurors for other than “good cause,” (3) an email from one of the victims was admitted in violation of the rule against hearsay evidence and in violation of the Confrontation Clause, (4) the district court erroneously delivered an “uncalled witness charge” prohibiting adverse inferences from a lack of testimony, and (5) the district court improperly admitted expert testimony as lay testimony. With respect to each argument, we conclude either that the district court did not err or that the error was harmless. We affirm the judgment of the district court.

Judge Chin dissents in a separate opinion.

COLLEEN P. CASSIDY, Federal Defenders of New York, New York, NY, for Defendant-Appellant.

KYLE A. WIRSHBA, Assistant United States Attorney (Patrick R. Moroney, Stephen J. Ritchin, Assistant United States Attorneys, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

1 MENASHI, Circuit Judge: 2 In 2021, Defendant-Appellant Rickey Johnson posted videos 3 and sent private messages on Instagram in which he threatened Fox

2 1 News hosts Greg Gutfeld and Laura Ingraham, Senator Joe Manchin, 2 and Representative Lauren Boebert. Given the seriousness of the 3 threats, Johnson was indicted on four counts. Counts One and Four 4 charged Johnson with making threatening interstate communications 5 in violation of 18 U.S.C. §§ 875(c) and 2; Counts Two and Three 6 charged Johnson with threatening United States officials in violation 7 of 18 U.S.C. §§ 115(a)(1)(B), (b)(4), and 2.

8 During the five-day jury trial in February 2022, the district 9 court dismissed three jurors: Alternate No. 2, Juror No. 7, and Juror 10 No. 2. The district court dismissed Alternate No. 2 on the second day 11 of the trial due to a medical emergency. It dismissed Juror No. 7 and 12 Juror No. 2 on the final day of the trial—just hours before the jury 13 retired to deliberate—due to a lack of childcare arrangements and a 14 finding of bias, respectively. The three dismissals reduced the jury to 15 eleven members. 16 At trial, the jury did not hear directly from the victims. 17 However, the jury did hear testimony from others who had contact 18 with the victims. Special Agent Brandon Kelley, a member of the 19 Threat Assessment Section of the U.S. Capitol Police, testified that he 20 examin