Categories & Search

Second Circuit Again Finds Plain Error in Use of “Motive to Lie” Jury Instruction When Criminal Defendants Take the Stand

In United States v. Solano, the Second Circuit (Kearse, Calabresi, and Carney) vacated and remanded a conviction for attempted possession of cocaine with intent to distribute on the grounds that the district court had committed plain error when it instructed the jury that “any witness who[] . . . ha[s] an interest in the outcome of this trial” has “a motive  . . to testify falsely” – including, here, the defendant.  In so holding, the Circuit reiterated that it will not permit a district court to instruct a jury in a way that presupposes the guilt of the defendant, even if the parties fail to object.  Future parties should pay careful attention to the procedural aspects of jury instructions, which can impact a defendant’s constitutional rights, even though the Circuit stands ready to correct these errors on appeal. 


On June 7, 2016, Juan Solano, an experienced commercial truck driver, was commissioned to pick up a container from Red Hook Container Terminal in Brooklyn.  Prior to his arrival, U.S. Customs and Border Protection (“CBP”) officers had detected what they determined was cocaine in that container, and, together with Homeland Security Investigations (“HSI”), removed it.  Members of the HSI task force then monitored the container’s whereabouts from unmarked law enforcement vehicles. 

When Solano arrived to pick up the container to take it to the Bronx, he called HSI Special Agent Brian Dalrymple to ask if there was a problem with the container.  Solano had encountered Dalrymple in 2014, when the officer interviewed Solano with respect to a different delivery.  But now, Dalrymple did not answer his phone, so Solano texted him to tell him where the container was being delivered and that Jimmy Machuca had hired him for the job.  Solano was arrested after he delivered the container, and interviewed twice.  He was later charged with attempt and conspiracy to possess cocaine with intent to distribute.

In the first interview that evening, as the government later demonstrated at trial, HSI Special Agent Lennis Barrois and NYPD Detective Michael Corvi, a member of the HSI task force, were present.  Barrois – who took notes during the interview – testified that Solano told the officers that Machuca had him pick up the container since Solano’s boss was ill.  The produce wholesale manager, Javier Montalvo, also warned Solano that Machuca was “bad” and that the container was suspicious.  Solano told the officers that he did not know the container held drugs, but assumed Montalvo meant that Machuca wrote bad checks.  Barrois and Corvi testified that Barrois read Solano his Miranda rights, and Solano waived them.  Solano did not sign anything.

According to the trial testimony, in the second interview that evening, HSI Supervising Special Agent Robert Etienne and Corvi began the questioning.  Corvi took notes.  Etienne testified that Solano initially repeated his story from the first interview.  However, when Etienne asked Solano whether he understood Machuca to be “bad” because he was involved in drugs, Etienne testified that Solano said yes.  Etienne also testified that Solano admitted he knew the container held drugs, and that he had transported drugs twice before.

After this admission, Etienne went to find Barrois, and in the ensuing second half of the interview, recapped everything Solano had said to Corvi and Etienne.  Etienne then asked Solano to repeat his story and walked out of the room. 

Barrois testified that, during the second half of the second interview, with Corvi and Barrois present, Solano again said that he knew the container held drugs.  Barrois did not take notes during this interview.  Nor did he record the conversation.  Corvi also testified that Solano admitted to knowing the container held drugs at this time.  However, the notes he was taking during the interview did not reflect this.  In fact, Corvi’s notes made no mention of the drugs involved with this container.

Solano also testified at trial, repeating his statements in the first interview.  However, according to his testimony, he did not tell Corvi, Etienne, or Barrois that he knew there were drugs in the container; nor did he admit to knowingly transporting drugs on two prior occasions.  Indeed, Solano said he realized the container may have contained drugs only after he saw cars following him.  Machuca and Montalvo corroborated his testimony.  Solano also testified that the officers had failed to give him Miranda warnings.

The Challenged Instruction

At trial, the issue was whether or not Solano had known before leaving the terminal in Red Hook that the container held drugs.  As to this issue, the primary evidence turned on witness credibility:  did the officers or Solano tell the truth about whether Solano admitted to knowingly transporting drugs?  Solano proposed some jury instructions regarding how to consider the question of witness credibility, but did not apparently advocate for the adoption of those proposed instructions at the charge conference.  Without objection from either party, the district court instructed the jury as follows:

“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.

Now, this is not to suggest that every witness who has an interest in the outcome of the case will testify falsely.  There are many people who no matter what their interest . . . in the outcome [of] a case may be would not testify falsely.  It is for you to decide based on your own perceptions and common sense to what extent, if at all, the witness's interest has affected or colored his or her testimony.”

The jury went on to find Solano not guilty of the conspiracy charge, but guilty of the attempt charge.  He was sentenced to 42 months in prison and two years’ supervised release.

The Court’s Decision

The Circuit reviewed the jury instructions for plain error because neither party objected below.  Under plain error review, the appellant must show that there was (1) error, (2) that is plain, and (3) that affects substantial rights.  See United States v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014).  An error affects substantial rights if there is a “reasonable probability” that it affected the outcome –  i.e. that the error “undermines confidence in the outcome of the trial.”  Id. at 155, 157. 

On appeal, Solano argued that instructing the jury that any witness with an interest in the outcome of a trial has a motive to testify falsely constituted plain error in light of a long line of Second Circuit precedent.  The Court agreed.  That line of precedent, as the Court explained, begins with United States v. Gaines, 457 F.3d 238 (2d Cir. 2006).  There, the Courts found error in “various formulations” of instructions which tread on (1) a defendant’s right, but not obligation, to testify in his own defense and (2) a defendant’s right to be innocent until proven guilty.  The relevant instruction in that case stated:

“In this case Mr. Gaines did testify and he was subject to cross-examination like any other witness. Obviously, the defendant has a deep personal interest in the result of his prosecution. This interest creates a motive for false testimony and, therefore, the defendant[’s] testimony should be scrutinized and weighed with care.  You should examine and evaluate his testimony just as you would the testimony of any witness with an interest in the outcome of this case. In appraising the defendant’s credibility you may take that into account.

It by no means follows, however, that simply because a person has a vital interest in the end result he is not capable of telling a truthful and straightforward story. It is for you to decide to what extent, if at all, the defendant's interest has affected or colored his testimony.”

The Court specifically took issue with the idea that defendants have a motive to testify falsely.  This instruction assumes the guilt of the defendant; an innocent defendant would instead have a motive to testify truthfully

Despite this clear holding, district courts have continued to give versions of this instruction to juries, and the Second Circuit has continued to find error.  In United States v. Brutus, 505 F.3d 80 (2d Cir. 2007), over an objection from the defense, the district court erroneously instructed the jury that “[a] defendant who does testify on her own behalf obviously has a deep personal interest in the outcome of her prosecution. . . . [and] such an interest creates a motive to testify falsely.”  Id. at 85.  Nevertheless, that error was harmless because it was not a close case which relied on the testimony of the defendant. 

In United States v. Mazza, 594 F. App’x 705 (2d Cir. 2014) (summary order), the district court once again erroneously instructed the jury that the “defendant in this case . . . is considered an interested witness. . . . [and s]uch an interest in the outcome creates a motive to testify falsely.”  Id. at 707.  There, because the verdict relied on the credibility of the defendant, the error was prejudicial and relief was warranted. 

In United States v. Mehta, 919 F.3d 175 (2d Cir. 2019), the Court again found error in an instruction.  The district court told the jury that it “may consider the fact that a defendant’s interest in the outcome of the case creates a motive for false testimony,” despite also saying that this “by no means follows that a defendant is not capable of telling the truth.”  Id. at 180.  That instruction was “clear and obvious error.”  Id.

And finally, in United States v. Munoz, 765 F. App’x 547 (2d Cir. 2019) (summary order), the Court considered and rejected a more broadly-worded instruction, which said that any witness with an interest in the outcome of a case will have a motive to testify falsely, and later, that a defendant’s testimony should be considered just like any other witness.  In that case, however, there was no prejudice to the defendant in light of the government’s overwhelming evidence of his guilt 

The district court’s instructions to the jury in Solano’s case were no different.  By asking the jury to “take into account evidence that the witness who testified may benefit in some way in the outcome of the case,” which would “create[] a motive on the part of the witness to testify falsely,” the instructions necessarily implied that, because Solano had an interest in the outcome of the case, he had a motive to testify falsely.  This instruction was therefore erroneous, and plain in light of Gaines and its progeny.  In particular, Munoz (though a summary order) involved jury instructions nearly on all fours with the instructions in Solano’s case.  And even though it was decided after Solano’s trial, plain error is determined at the time of appellate consideration. 

Finally, the Court held that this error was prejudicial to Solano because the case turned on whether Solano knew that the container held drugs, an element which relied on Solano’s credibility.   In fact, the Court explained that the only direct evidence as to knowledge was from the witnesses – it was essentially a “he said, they said” involving the defendant and officers.  And circumstantial evidence (such as the lack of written notes, Miranda statement, and other proper documentation) favored the plausibility of Solano’s story.  On the whole, the evidence was such that the jury instruction undermined confidence in the outcome of trial.  Thus, the Court concluded that “there is a reasonable probability that the motive-to-testify-falsely error prejudicially affected Solano’s substantial rights.”  Accordingly, the plain error standard was met, and his conviction was vacated.


Yet again, the Court has done the parties and district court a service in vacating this conviction and reminding parties that Gaines is not to be ignored:  a jury instruction which speaks to a witness’s interest in the outcome of the case, and thus a motive to testify falsely, is never proper when a defendant takes the stand.  There are of course many formulations of this prohibited instruction, but any possible implication that the defendant has a motive to lie is in direct conflict with Gaines and the constitutional principles Gaines protects.  Indeed, this opinion is best understood as an emphatic exclamation point to the Circuit’s recent line of cases, beginning with Gaines

Given that jury instructions are often based on models from prior cases, it is in some sense understandable that this prohibited instruction continues to pop up in new trials.  At the same time, Gaines is not a new decision.  How old is Gaines?  It was decided five days after Twitter’s release to the public and one year before the first sale of the iPhone.  There is no reason for the instruction that Gaines rejected as unconstitutional to be delivered in future trials.  Defense attorneys, the government—and, surely, judges as well—would be well-served to remain vigilant when preparing jury instructions, particularly from older forms circulating in the courts.  During the charge conference and at trial, parties should object to any proposed instruction which might fly in the face of the Court’s clear precedent.  To do otherwise will compromise the defendant’s rights, jeopardize the verdict, and require a new trial in those cases—which are many—that turn on the credibility of the defendant and the government’s witnesses.

By Maggie O'Neil and Harry Sandick