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Case 1:20-cr-00330-PAE Document 438 Filed 11/12/21 Page 48 of 54 IX. The Court Should Preclude Evidence or Argument Sounding in Nullification The defendant may attempt to offer evidence of aspects of her life that may tend to elicit the juror’s sympathy, such as her charitable works or evidence of her family history. Such evidence should be excluded as irrelevant, confusing, and prejudicial. As discussed above, the Federal Rules of Evidence preclude the use of good acts to draw a propensity inference in favor of the defendant, just as they preclude the use of prior bad acts for the same purpose. See supra Section VII. Evidence and argument that makes the defendant appear sympathetic for reasons unrelated to the charges at issue should also be excluded as inviting the jury to acquit a defendant even where the evidence proves her guilt beyond a reasonable doubt. Juries are not “to act based on their... sympathy.” United States v. Stroming, 838 F. App’x 624, 627 (2d Cir. 2021) (summary order); see, e.g., United States v. Mustaga, 753 F. App’x 22, 37 (2d Cir. 2018) (summary order) (“The district court correctly recognized that evidence of solitary confinement could be used for the improper purpose of provoking juror sympathy.”). Any attempt to encourage such sympathy is therefore an attempt at nullification, which is itself plainly improper. See, e.g., United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997) (Jury nullification is “by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.”); id. at 614 (“We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.”); see also United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983) (per curiam) (“A jury has no more ‘righ?’ to find a ‘guilty’ defendant ‘not guilty’ than it has to find a ‘not guilty’ defendant ‘guilty,’ and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the 47 DOJ-OGR-00006408