Rezene v. United States

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 24-CF-0283 MUSSAY REZENE, APPELLANT, V. UNITED STATES, APPELLEE. Appeal from the Superior Court of the District of Columbia (2022-CF1-000323) (Robert D. Okun, Judge) (Argued June 9, 2026 Decided September 24, 2026) Nancy E. Allen for appellant. Anne Y. Park, Assistant United States Attorney, with whom Jeanine Ferris Pirro, United States Attorney, and Chrisellen R. Kolb, Dennis G. Clark, Jr., and Colleen D. Kukowski, Assistant United States Attorneys, were on the brief, for appellee. Before BLACKBURNE-RIGSBY, Chief Judge, and DEAHL and HOWARD, Associate Judges. DEAHL, Associate Judge: Mussay Rezene was charged with first-degree murder and two firearm-related offenses after Brayan Villatoro was killed in an alley. Rezene’s trial ran longer than expected, and no alternate jurors remained by the start of deliberations. Three of the remaining twelve jurors (Jurors 1, 5, and 12)  2 had inflexible travel plans, with Juror 1 set to permanently relocate to England. On the third day of deliberations, the trial judge excused Juror 5 so she could take a scheduled trip to Portugal to visit family, and deliberations continued with eleven jurors. The next week, the jurors sent two notes indicating that they were deadlocked. Then, just hours before Juror 1 and Juror 12 were scheduled to depart for their own trips—having received no assurances that they would be permitted to take their trips if the jury did not reach a verdict—the jury reached a verdict. It convicted Rezene of first-degree murder but acquitted him of the firearm offenses. Rezene appeals his conviction, arguing that the circumstances of the jury’s deliberations reveal a “substantial risk of a coerced verdict.” Coley v. United States, 196 A.3d 414, 420 (D.C. 2018) (quoting Morton v. United States, 415 A.2d 800, 802 (D.C. 1980)). We agree that there was such a risk for three main reasons: (1) the jury rendered its verdict only hours before Juror 1 and Juror 12 were set to leave on extended travel; (2) the jury sent two notes signaling that it had reached a deadlock before rendering that verdict; and (3) most crucially, the trial judge offered no assurances to Jurors 1 and 12 that they would be permitted to take their trips regardless of whether the jury reached a verdict. We thus vacate Rezene’s conviction and remand for a retrial.  3 I. Background Brayan Villatoro was driving to his brother’s house with a group of friends in a black minivan when he told the driver to drop him off so he could buy some “perks,” a slang term for Percocet. The driver pulled onto the 1300 block of Nicholson Street in Northwest D.C., and Villatoro exited the car alone. One of the passengers indicated that, as Villatoro got out of the van, he said: “I’m about to meet Mus,” an apparent reference to appellant Mussay Rezene, “I’ll be right back.” The passengers soon heard a series of gunshots. The driver felt “shocked” and “scared,” then drove away. He circled back to the scene a few minutes later, at which point the police had arrived. No witnesses saw the shooting, but one witness who called the police later testified that she heard the shots and saw someone run out of an alley and into the passenger side of a car that drove away. Responding officers found Villatoro dead in the alley with eight gunshot wounds. They soon recovered surveillance footage that showed the following in relation to the prime suspect: (1) the black minivan that Villatoro was traveling in turned onto Nicholson Street and parked; (2) Villatoro exited the minivan and walked toward the middle of the block; (3) about a minute later, a blue Chrysler sedan drove past Villatoro, then drove around the block and pulled up alongside him; (4) someone exited the front passenger seat of that car; (5) that person and Villatoro,  4 recognizable only as two silhouettes, walked across the street and into an alley; (6) about fifteen seconds later, eight gunshots can be heard; (7) the silhouette of one person can be seen running out of the alley and getting into the passenger side of the blue Chrysler; and (8) that car drove away. The footage is pretty grainy and shows only the bottom half of the assailant as he enters and exits the car. One police officer opined, based on the video evidence, that the assailant was wearing “slim gray jeans with a light-colored top” with “pronounced light-colored laces” on his shoes “that stood out.” He also testified that the footage indicated another person opened the rear passenger side door, stuck their leg out, and closed the door as the assailant got back in the car, but that is not clear from the footage itself. Police officers found the blue Chrysler abandoned nearby, but they recovered nothing from the car that would connect any suspect to Villatoro’s murder. Instead, the police connected Mussay Rezene to the murder based on records from Villatoro’s phone which showed several calls and texts in the days leading up to the murder with a phone number linked to Rezene, as well as messages with Rezene’s Instagram account. As relevant here, Villatoro messaged Rezene two weeks before the murder and asked, “where da yerks?,” another slang term for Percocet. Rezene responded a week later, “how much you want a pop,” and Villatoro reacted with a heart emoji and said, “im tryna get em.” Then, on the night of the murder, Rezene tried calling Villatoro at around 7:45 pm. At 8:00 pm, Rezene followed up with a text message:  5 “Got dem yerkys call me for Dey be gone.” Villatoro called Rezene back at 8:11 pm, and their call lasted about ninety seconds. Phone records revealed four more calls between 8:58 pm and 9:11 pm. The eight gunshots from the alley were recorded just two minutes after the last call, at 9:13 pm that night. The police also obtained detailed location data for Rezene’s cell phone that placed him on or near the 1300 block of Nicholson St. at the time of the murder. His cell phone’s movement matched where automated cameras detected the blue Chrysler’s tag in the minutes before and after the murder. In addition, about six hours after the murder, Rezene posted an Instagram story that showed him and two other men with the caption: “Better Off Fuckin Round Wit Aids or Cancer.” 1 Rezene was wearing a light gray hoodie, gray jeans, and black shoes with white laces in the photo. Rezene was arrested and charged with first-degree murder, possession of a firearm during a crime of violence, and unlawful possession of a firearm. His trial lasted nearly a month, from December 6, 2023, to January 2, 2024. The government’s main theory at trial was that Rezene entered the alley with Villatoro, shot him eight times, ran out, and got in the blue Chrysler as it drove away. Near the The story photo was accompanied by music that included the following lyric: 1 “Rest in peace to all the opps . . . . Fuck the opps for life.”  6 end of trial, however, the government requested an aiding and abetting instruction in case the jury believed somebody else in the car with Rezene might have been the shooter. The trial judge called that request a “close call” but agreed to instruct the jury on aiding and abetting liability given the evidence that Rezene lured Villatoro into the alley and that at least one other person was in the car with the shooter. The jury—after lengthy deliberations detailed below—found Rezene guilty of first- degree murder but not guilty of the firearm possession offenses. Rezene was sentenced to forty-five years in prison. He now appeals. II. Rezene’s Coerced Verdict Claim Rezene argues on appeal that there was “a substantial risk of a coerced verdict” in this case given the inherent pressures that jurors would have felt to render a verdict before some of them became unavailable due to firm and imminent travel plans. See generally Abney v. United States, 273 A.3d 852, 859-60 (D.C. 2022) (reversing convictions where “circumstances raised a substantial risk that [a juror] was feeling strong pressure to complete deliberations before his planned departure” on a trip). Before delving into that issue, we provide some additional background.  7 A. Additional background relevant to the coerced verdict claim Rezene’s trial took quite a bit longer than expected, and that led to several significant issues with juror availability as the trial extended into and beyond peak holiday travel season. During jury selection on December 5, 2023, the trial judge told jurors that the trial was likely to conclude by December 14 or “possibly December 18,” with the caveat that this was an “estimate” and not a “guarantee.” The evidentiary phase of trial instead stretched into January, with closing arguments taking place on January 2, 2024. By that point, no alternate jurors remained. The court had initially seated fifteen jurors, which included three alternates. But three of the jurors were excused for various reasons during the course of trial: (1) Juror 9 was excused on the first day of trial for mental health reasons; (2) Juror 10 was excused on the second day for family issues; and (3) Juror 3 was excused on December 18 so she could take a planned family trip. Two of the remaining twelve jurors had also voiced concerns during the trial about upcoming travel plans. On December 14, about midway through trial, when the trial judge told the jury it would not deliberate between December 22 and January 2, Juror 1 mentioned that she was permanently moving to England during that holiday break—on December 30. She explained that she was scheduled to start work in England on January 3, but when asked if she could nonetheless delay her  8 relocation, Juror 1 agreed that she could probably delay it for a week without too much trouble. She also confirmed that she would “not let time pressures influence her verdict.” Several days later, when it became evident that the trial would in fact not wrap up before the announced holiday break, a different juror, Juror 5, told the trial judge she had a non-refundable flight to Portugal on the night of January 5 for a weeklong trip. The jury started deliberating on the morning of January 3, and the trial judge told Juror 5 that she should not feel pressure to reach a quick verdict because of her trip in two days. Two days later, on the morning of January 5, the trial judge told Juror 5 that the trial was “not going to get in the way of [her] taking this trip” and that she would be able to take the trip “whether deliberations are completed or not” by day’s end. The judge then brought in the rest of the jurors and told them Juror 5 “will be excused so she can go on this trip” if “no verdict is returned by the end of the day.” The judge also said the jury “should feel no pressure at all” to decide the case before the end of the day “simply because Juror Number 5 will be going on this trip.” Those communications with the jurors on January 5 took place near the outset of the morning’s deliberations, between 9:45 am and 10:30 am. Later that afternoon, the jury sent a note stating it was “unable to at this time reach a unanimous decision” on the murder charge and that its verdict on the other  9 two charges “hinges on” that decision. Defense counsel asked the court to issue an “anti-deadlock” instruction, but the trial judge opined that the note did not indicate that there was “a clear deadlock.” The judge instead told jurors that two-and-a-half days of deliberations was “not unusual” in a case like this one and directed the jury to continue deliberating. Around 4:00 pm, still with no verdict, the government requested that Juror 5 be excused, while defense counsel moved for a mistrial. The trial judge decided to question Juror 5, who confirmed she would not be able to participate in deliberations again until she was back from her trip more than a week later. The judge also questioned Jurors 1 and 12 about impending travels they had brought to the court’s attention. Juror 1, who had previously delayed her anticipated move to England, explained that she had to arrive in England no later than January 12. She explained that her work visa was issued on December 22 and that she had twenty-one days from issuance to “touch down” in England. She noted that she could potentially fly to London and then fly back to D.C. for further deliberations, but the trial judge opined—outside of Juror 1’s presence—that “there is no way I’m having her do that for us” because it was too great a “hardship.” At the same time, Juror 12 asked to speak to the court and mentioned—seemingly for the first time—that she likewise had to leave D.C. on January 12 and was having health issues. More specifically, Juror 12’s blood pressure had been spiking to a degree where it was “three points away from calling 911” at one point, and she had  10 told her fellow jurors to watch her for signs of a stroke. Defense counsel again moved for a mistrial, while the government argued that was premature and asked the trial judge to dismiss Juror 5 and proceed with eleven jurors. The trial judge agreed with the government and found that “extraordinary circumstances and just cause” justified excusing Juror 5 and proceeding with eleven jurors under Superior Court Criminal Rule 23(b). As the judge noted, he could not simply replace Juror 5 because all three alternates were dismissed, and he could not delay the deliberations until Juror 5 returned from Portugal because Jurors 1 and 12 would become unavailable in the interim. The remaining eleven jurors resumed deliberations after the weekend break on Monday, January 8. They took the 9th off from deliberations owing to one of the jurors’ work obligations and resumed deliberations again on the 10th, with Juror 1’s redeye flight to England scheduled for the following night. At around noon on the 10th, the jury sent a note stating that it “remain[ed] unable to reach a unanimous decision [on] any of the three charges in this case.” The government then asked for a Winters anti-deadlock instruction, while defense counsel again moved for a mistrial. The trial judge denied the mistrial motion and issued a Gallagher anti-  11 deadlock instruction, after noting that a Winters instruction might be unduly coercive. 2 On the following day of deliberations—with Juror 1’s flight to England scheduled for later that night, just under the wire of her visa’s expiration—the jury deliberated throughout the morning and into the afternoon. During that time, the trial judge did not provide jurors with any express assurances that Juror 1 would be permitted to make her move to England if the jury did not render a verdict on that day. After several hours of deliberations, at 1:54 pm, the jury sent a note indicating 2 Anti-deadlock instructions not only direct jurors who have reached an impasse to continue deliberating but include further language about the desirability of reaching a unanimous verdict, the duty to reexamine one’s views to that end, and so forth. To varying degrees, anti-deadlock instructions encourage or pressure jurors to break through their deadlock and reach a verdict. These instructions themselves can be quite coercive in urging dissenting jurors to go along with the group for unanimity’s sake and thus are often accompanied by mitigating language reminding jurors not to surrender their honestly held beliefs or their individual judgments for the sake of reaching a verdict. On the coerciveness scale, the government’s preferred Winters charge is regarded as the most coercive permissible option in this jurisdiction in light of its “rather emphatic language” urging jurors to reach a verdict, and “we have deemed it to represent the ‘highwater mark’ of an anti-deadlock instruction because of the ‘sting’ it carries in favor of a verdict.” Hankins v. United States, 3 A.3d 356, 359-60 n.3 (D.C. 2010) (quoting Winters v. United States, 317 A.2d 530, 533-34 (D.C. 1974) (en banc)). The trial court instead gave a “Gallagher instruction”—proposed by Judge Gallagher in his Winters concurrence—which is somewhat more moderate in that it reminds jurors not to surrender their own beliefs just for the sake of reaching a verdict, so that “its overall tenor makes clear that ‘a verdict is not being demanded.’” Hankins, 3 A.3d at 363 (quoting Winters, 317 A.2d at 539 (Gallagher, J., concurring)).  12 that it had reached a verdict on all charges. The jury was then called into the courtroom at 2:28 pm to announce its verdict, and it found Rezene guilty of first- degree murder but not guilty of the two firearm possession offenses. Each juror was polled and agreed with the verdict, and the jurors were excused mere hours before Juror 1’s redeye flight to England that evening. B. The circumstances raise a substantial risk of a coerced verdict Based on those facts, we agree with Rezene that there “was a substantial risk of juror coercion.” Abney, 273 A.3d at 859. That is because the jury had twice signaled it was deadlocked and reached a verdict only in the hours before Juror 1 was scheduled to embark on an overseas move—plus Juror 12 had a similarly imminent and extended trip—and the trial judge provided no assurances that those jurors would be permitted to take their trips regardless of whether the jury returned a verdict. “When a defendant exercises their right to a jury trial, the jury’s verdict will have legitimacy only if it is the product of unanimous decision making, devoid of coercion.” Callaham v. United States, 268 A.3d 833, 841 (D.C. 2022). Claims of juror coercion “must be evaluated in context and with regard to all of the circumstances.” Abney, 273 A.3d at 859 (quoting Coley, 196 A.3d at 420).  13 We assess the risk of coercion “from the jurors’ perspective,” considering both (1) “the inherent coercive potential of the entire situation before the trial court”; and (2) “the ameliorative or exacerbating impact of the judge’s actions in response.” Callaham, 268 A.3d at 842 (quoting Hankins, 3 A.3d at 361). Our task is not to determine whether a verdict was “in fact coerced,” but only whether the record reveals a “substantial risk of a coerced verdict.” Id. at 841-42 (quoting Coley, 196 A.3d at 420). We begin by exploring two key cases in which we evaluated the risk of coercion where a juror had upcoming inflexible travel plans: The first is Van Dyke v. United States, 27 A.3d 1114 (D.C. 2011), which the government heavily relies upon, where we found no substantial risk of juror coercion. The second is Abney, 273 A.3d 852, which Rezene heavily relies upon, where we reversed appellants’ convictions based on a substantial risk of juror coercion. We outline those cases and then explain why this case is much more similar to Abney than it is to Van Dyke. i. Van Dyke and Abney In Van Dyke, the jury deliberated on Van Dyke’s second-degree murder charge for just over two days before it notified the court that it was deadlocked. 27 A.3d at 1117-18. The court denied defense counsel’s request for a mistrial and instead instructed the jury that it was “not unusual in cases such as this” not to have  14 reached a verdict in that timeframe so that they should continue deliberating. Id. at 1118-19 & n.7. A few hours later, the jury sent a note stating it was still “firmly deadlocked” on some counts, and Juror 737 sent a separate note reminding the court that she was “unable to serve on the jury” after that day because of a wedding she was scheduled to attend “outside the U.S.” Id. at 1120. The trial court then asked the jury, without addressing Juror 737’s note, whether it had “reached a unanimous verdict on any count.” Id. The jury responded that it was only deadlocked on the second-degree murder charge and had not considered the lesser-included offense of voluntary manslaughter while armed. Id. at 1121. The court instructed the jury to consider that lesser offense and added it would respond to Juror 737’s note “when relevant as the day goes on.” Id. Thirteen minutes after returning to deliberate, the jury found Van Dyke guilty of voluntary manslaughter. Id. We upheld Van Dyke’s conviction, rejecting his argument that the timing of the jury verdict and the trial court’s failure to respond to Juror 737’s note created a “substantial risk that the verdict was coerced.” Id. at 1127. On the second point, we noted that Juror 737 had mentioned her plan to leave the country on the second day of trial, and the trial court assured her with all other jurors present as follows: “[Y]ou should have no . . . concern about that. That will not be an issue. You’ll not be missing an important event out-of-town.” Id. at 1128. We emphasized this assurance to Juror 737 in rejecting Van Dyke’s coerced verdict claim. Id. at 1128-29. Beyond  15 that, we noted the following: (1) there was no evidence that Juror 737 was “under emotional strain,” id. at 1129 (quoting Morton, 415 A.2d at 802-03); (2) no anti- deadlock instruction was given—just the instruction to consider voluntary manslaughter as a lesser-included offense; and (3) the prompt verdict could be explained by the fact that the jury had only recently been instructed that it could proceed to considering the voluntary manslaughter count, and the jurors had essentially already deliberated for days on the substance of that count given the overlapping elements between it and the murder charge. Id. at 1129-30. In Abney, we faced a vaguely similar situation but reached the opposite result. Near the end of Abney’s longer-than-expected trial, Juror 7 told the trial court on December 29 that he had longstanding plans to fly to California at around 2:00 pm on Monday, January 7, so that he would be unavailable to deliberate after Friday, January 4. Abney, 273 A.3d at 858, 861. Defense counsel moved to replace Juror 7 with an alternate, but the trial court denied that request. Id. at 858. Then on January 3—the second day of deliberations—defense counsel expressed concern about Juror 7’s imminent travel plans and asked the court to question him, but the court declined to do so. Id. The next morning, Friday, January 4—the last day Juror 7 said that he was available for deliberations—Juror 7 sent a note asking whether the jury “had to be unanimous on all counts.” Id. Defense counsel again moved to replace Juror 7, citing the inherent pressure he would feel to reach a verdict to avoid missing his trip,  16 but the trial court declined to replace him. Id. Later that afternoon, Juror 7 sent another note reminding the court about his plan to leave on Monday. He elaborated that his presence in California was “especially required” because he was “meeting [his] brother to do a backpacking trip in the desert” and had “supplies that he needs and is relying on.” Id. Thirteen minutes later, the jury announced it had reached a partial verdict on five of the counts. Id. Defense counsel renewed the request to replace or at least question Juror 7, but the trial court declined to do either. Id. Instead, after taking a partial verdict and excusing the other jurors for the day, the court told Juror 7 he had to return to deliberations on Monday, January 7. Id. at 859. Around 1:00 pm on the 7th, about an hour before Juror 7’s flight to California would depart (at least in his telling), the jury found Abney guilty on all remaining counts. Id. We reversed Abney’s convictions, holding that there was a substantial risk of juror coercion “by the time the trial court took the first verdicts on January 4th.” Id. We explained that by that point: (1) Juror 7 had clearly and repeatedly expressed his concerns about his upcoming trip to California; (2) the court had “simply required Juror 7 to continue sitting”; (3) the trial had run longer than expected and the jury did not start deliberating until three business days before Juror 7’s trip; (4) the note on January 4 suggested the jury “might be having some difficulty reaching unanimous verdicts on all counts”; and (5) later on the 4th, Juror 7 “emphasized the  17 importance of his travel plans” and “flatly stated” he could not be in court for deliberations on January 7. Id. Those circumstances raised a “substantial risk that Juror 7 was feeling strong pressure to complete deliberations before his planned departure.” Id. We also explained that the trial court’s actions up to that point “did not dispel or alleviate the risk of coercion” because the court never inquired into Juror 7’s travel plans or his ability to render an impartial verdict. Id. at 860. Crucially, Abney distinguished Van Dyke as “differ[ent] from this case . . . in a critical respect,” highlighting that “the trial court in Van Dyke assured the juror” in question that she “would be permitted to take her trip” regardless of whether the jury had reached a verdict. Id. at 861 (citing Van Dyke, 27 A.3d at 1129). Because of that “critical” assurance, we reasoned that “there was no substantial reason to believe that [Juror 737’s] concern about the trip would have a coercive effect on the juror’s deliberations” in Van Dyke. Id. But the trial judge offered no such assurances in Abney, and we concluded that “a substantial risk of juror coercion . . . was not effectively addressed” on those facts. Id. ii. Applying the law to this case Rezene argues that the combination of the following circumstances reveals a substantial risk of a coerced verdict when the jury found him guilty of first-degree murder on the afternoon of January 11: (1) Juror 1 was flying to England that night  18 and had already pushed back her relocation to the last possible day before her visa expired; (2) Juror 12 told the court she was having health issues and had to leave the District the following day; (3) the jury suggested it was at an impasse on January 5, and more clearly indicated it was deadlocked on January 10; (4) the trial judge issued a Gallagher anti-deadlock instruction after the second note; and (5) the judge never assured Jurors 1 and 12 that they would be permitted to take their trips regardless of whether the jury reached a verdict. We agree on these facts—especially the timing of the verdict, the anti-deadlock instruction, and the failure to assure Jurors 1 and 12 that they would be able to take their planned and imminent trips—that there was a substantial risk of juror coercion. Similar to Abney, the inflexible travel plans of not one but two deliberating jurors created a situation where the risk of a coerced jury verdict could not be ignored. Juror 1 was moving overseas on the night of the 11th, and she had already pushed back her move to the last possible day before her work visa was set to expire. And Juror 12 told the judge she was leaving D.C. the following day and wouldn’t be back “until February.” Juror 12 also told the court on January 5 that she had “not been doing well physically”—her blood pressure had approached the point of calling for an ambulance and she had asked her fellow jurors to “watch out for” signs that she was experiencing a stroke.  19 The potential coercion was only ratcheted up when the trial judge issued an anti-deadlock instruction on January 10 without assuring Juror 1 or Juror 12 that they would be allowed to embark on their travels regardless of whether the jury reached a verdict. We acknowledge as somewhat relevant that the judge issued a “Gallagher instruction,” as opposed to the more emphatic “Winters instruction.” See supra n.2 (explaining the difference). The Gallagher instruction, beyond telling jurors to continue deliberating, makes clear that a verdict is “not being demanded” and that no juror should “surrender [their] honest convictions” simply to return a verdict or because of their fellow jurors’ opinions. Id.; see also Hankins, 3 A.3d at 363. But given Juror 1’s imminent plan to permanently leave the country and Juror 12’s plan to leave the District for at least three weeks, issuing even a Gallagher instruction without assuring jurors that they would be allowed to embark on their travels could have reasonably been interpreted by the jurors as implying, in Rezene’s words: “you have one day left to resolve this.” The trial judge’s failure to offer Jurors 1 and 12 any assurances that they would be permitted to embark on their trips, despite the jury’s deadlock note, renders this case much more like Abney than Van Dyke, where the juror in question was provided with that “critical . . . assurance.” Abney, 273 A.3d at 861. The government counters that the trial judge’s actions earlier in the deliberations alleviated “any potential for coercion” because the judge discussed  20 “the various scheduling conflicts with the jurors,” allowed Juror 5 to take her trip to Portugal as planned, and encouraged “jurors not to feel pressure to return a verdict by any time.” More specifically, the judge (1) told Juror 5 on January 3 that she should not “feel any pressure to decide this case quicker than [she] would otherwise decide it”; (2) reiterated that assurance on January 5 and told Juror 5 she was “going to take this trip . . . whether deliberations are completed or not”; and (3) told the full jury later that afternoon that Juror 5 would be excused if no verdict was returned by the end of the day and that it “should feel no pressure at all” to reach a verdict just because Juror 5 was going to be excused. We do not doubt that the trial judge alleviated any serious risk of juror coercion on January 5, and if the jury had reached its verdict on that day, we are confident that any juror coercion claim would fail: the circumstances up to that point closely resemble Van Dyke, where the single juror with approaching travel plans was assured she would be able to travel regardless of whether the jury reached a verdict or not. 27 A.3d at 1129. But January 5 is not the relevant point in time. Our focus must instead be on the pressures on the jury at the time it rendered its verdict the following week, on January 11. By then, the facts are very comparable to those in Abney, and not much like those in Van Dyke. Just as in Abney, the jury sent a note suggesting it had reached an impasse on the business day before Juror 1 and Juror 12 were set to be unavailable, and the trial judge did not assure them that  21 they would be able to take their trips. If anything, the inherent coercive potential of the situation here was greater than in Abney: (1) Abney involved just one juror’s domestic travel for pleasure, whereas this case concerns two jurors’ seemingly inflexible travel plans, one of which was a permanent overseas relocation; (2) no juror had reported serious health issues in Abney, whereas Juror 12 here reported that she was teetering on the edge of a serious medical emergency; (3) the trial court had not issued an anti-deadlock instruction before receiving the jury’s partial verdict in Abney, as it had done here;3 and (4) the jury here had already dwindled down to just eleven members with no alternates available, which might have further heightened jurors’ perceptions that no additional jurors would be excused. The government further counters that Jurors 1 and 12 would have “no reason to believe that the trial court would treat [their] trip[s] any differently” than Juror 5’s, who was permitted to take her trip to Portugal on January 5. 4 The argument goes 3 The trial judge in Abney issued an anti-deadlock instruction on January 7, before the final verdict was announced. But we found the substantial risk of coercion had already materialized by the time of the partial verdict on January 4. 273 A.3d at 859-60. 4 We note that the risk of juror coercion is not limited to the pressures felt by Jurors 1 and 12 but extends to the other jurors who might feel coerced to reach a verdict in order to avoid scuttling their fellow jurors’ plans. See Morton, 415 A.2d at 803 (noting the substantial possibility that “another juror compromised [their] views to accommodate the bereaved [juror]” whose brother had died and who had not been excused from deliberations).  22 that because the court permitted Juror 5 to take her trip to Portugal despite the lack of a verdict, Jurors 1 and 12 would have assumed that they would likewise be permitted to take their trips. We disagree. We think it is just as likely, or at least that there is a substantial risk, that the jurors would have interpreted the trial judge’s actions in precisely the opposite way. On the day Juror 5 was scheduled to depart, the trial judge had expressly assured her, in front of the entire jury, that she would be able to take her redeye flight to Portugal that evening. That crucial fact stood in marked contrast to the trial judge’s failure to offer any similar assurances to Jurors 1 and 12 on the morning of January 11 before their imminent travels, or at any time before then. In fact, the jury deliberated until roughly 2:00 pm on January 11, mere hours before Juror 1 was scheduled for an overseas move, and at no point did the trial judge offer assurances that Juror 1 would be permitted to make that move before her visa expired the following day. The contrast between the express assurances offered to Juror 5 at the outset of her last day of availability, and the lack of any similar assurances to Jurors 1 and 12 throughout the morning and afternoon of the last day of their availability, only further increases the substantial risk of a coerced verdict here.5 And 5 The government also points to the unanimous jury poll and claims it “further indicated that none of the jurors felt improperly coerced.” But as we noted in Abney,  23 as we have mentioned, the fact that the jury was down to just eleven members, and had just been given an anti-deadlock charge, in combination with the lack of assurances, posed a serious risk that jurors would think no further jurors would be excused. In sum, we conclude that the trial judge failed to alleviate the substantial risk that the jury felt coerced into reaching a verdict on the afternoon of January 11, mere hours before two of the jurors became unavailable for further deliberations. Under the circumstances, we suspect that the only sufficiently ameliorative step the trial judge could have taken to avoid that substantial risk was to expressly assure Jurors 1 and 12 that they would be permitted to embark on their imminent travels regardless of whether the jury reached a verdict, and the trial judge failed to take that step. We therefore vacate Rezene’s conviction. III. Additional Issues We now address Rezene’s argument that the evidence was insufficient for a jury to convict him of first-degree murder, because “a ruling in [Rezene’s] favor on that issue would bar retrial on Double Jeopardy grounds.” Evans v. United States, 122 A.3d 876, 886 (D.C. 2015). We also exercise our discretion to address Rezene’s “jury polls do not shed significant light” on whether the jurors were “feeling internal pressure to complete deliberations” before their trips. 273 A.3d at 861.  24 argument that the trial court erred in granting the government’s request for an aiding and abetting instruction because that issue is likely to arise on remand. See Fleming v. United States, 224 A.3d 213, 224 (D.C. 2020) (en banc).6 A. The evidence was sufficient to convict Rezene of first-degree murder Rezene argues that the evidence was insufficient to sustain his first-degree murder conviction as either a principal or as an aider and abettor. We review sufficiency claims de novo and consider the evidence “in the light most favorable to the verdict, giving full play to the right of the fact-finder to determine credibility, weigh the evidence, and draw justifiable inferences of fact.” Brown v. United States, 341 A.3d 1058, 1061 (D.C. 2025). Where the government submits parallel theories of liability to the jury, and it is unclear which theory the jury convicted on, we will generally uphold a conviction if the evidence is sufficient under either theory. See 6 We can summarily resolve Rezene’s argument that the trial court erred in excusing Juror 5 on day three of deliberations so that she could take a long-planned trip to Portugal while allowing deliberations to proceed with eleven jurors. We conclude that the trial court acted within its discretion when making that decision. The trial court recognized that it had discretion in the matter, weighed the appropriate factors, and cogently concluded that the only viable options before it were to declare a mistrial or to allow deliberations to proceed with eleven jurors, given that two other jurors would become unavailable before Juror 5’s return. Given that declaring a mistrial “is a severe remedy,” see Parker v. United States, 757 A.2d 1280, 1286 (D.C. 2000), that confluence of circumstances supplied the necessary “just cause” for excusing Juror 5 and such “extraordinary circumstances” that the trial court acted within its discretion in allowing the remaining eleven jurors to resume deliberations. See Super. Ct. Crim. R. 23(b).  25 Inyamah v. United States, 956 A.2d 58, 62 (D.C. 2008). To convict a defendant of first-degree murder, the government must establish that they “intentionally killed another human being, while armed, with premeditation and deliberate malice.” Mitchell v. United States, 985 A.2d 1125, 1136 (D.C. 2009). The evidence at Rezene’s trial was sufficient to convict him as the principal in Villatoro’s murder. The government presented a string of messages showing that Rezene had arranged a drug deal with Villatoro on the night h