JAMES O. BROWNING, District Judge.
Ganadonegro went to trial on charges of intentional child abuse, charged as first-degree murder, on September 1, 2011. See Clerk's Minutes, filed September 1, 2011 (Doc. 192). The jury hung, and the Court declared a mistrial. See Jury Notes at 2-4, filed September 13, 2011 (Doc. 194).
On January 3, 2012, Ganadonegro filed his Motion seeking dismissal of the Superseding Indictment. Ganadonegro contends that the Superceding Indictment advances a theory of criminal liability which is manifestly inconsistent with the theory of guilt that United States advanced at the first trial. See Motion at 6-11. Ganadonegro argues that, in charging him with the Counts in the Superseding Indictment, the United States has acted in a fundamentally unfair manner and has deprived him of his constitutional right to due process of law. See Motion at 6-11. He argues that "the doctrine of collateral estoppel should bar a prosecutor from arguing a different theory of liability in a subsequent criminal prosecution if the government's trial theories are `inherently factually contradictory' and `irreconcilable.'" Motion at 7-8. He argues that there has been no newly discovered evidence that justifies the additional Counts in the Superseding Indictment. See Motion at 10. Ganadonegro contends that, in the alternative, because the Superceding Indictment is multiplicitous, the Court should either dismiss the Superceding Indictment or require that the United States elect a single theory of criminal liability to present to a jury in the re-trial. See Motion at 11-12. Finally, if the Court chooses not to dismiss the Superseding Indictment, Ganadonegro seeks the Court's permission "to introduce portions of the Government's opening and closing arguments from the first trial which are inconsistent with any theory of guilty the Government intends to advance in this case." Motion at 13. He contends that the statements are admissible either as prior inconsistent statements or as admissions by party opponent. See Motion at 1, 13-14.
On January 11, 2012, the United States filed its Response. See United States' Response to Motion to Dismiss [Doc. 228] (Doc. 233)("Response to Motion to Dismiss"). The United States contends that the present theories which it intends to present at trial to the jury are not mutually inconsistent theories of guilt. See Response at 2. It notes that it has not filed a new witness list and that its presentation of evidence at the upcoming trial "will be substantially identical." Response at 2. It asserts that its "theory remains as it has been throughout the pendency of the case: that Defendant, acting alone, killed 10-month-old Q.S. with his bare hands, by shaking her and throwing her." Response at 3. It contends that "[t]he only difference between the allegations the government presented in the first trial and will present in the second trial will be the alleged state of mind Defendant possessed when he killed Q.S." Response at 2-3. The United States argues that Ganadonegro's "subjective state of mind is uniquely known to Defendant and uniquely elusive to the prosecution," and that it must prove his state of mind circumstantially. Response
In its Response to Motion to Dismiss Count 3, the United States argues that the charged offenses in the Superseding Indictment are not multiplicitous, as they each contain elements distinct from the others. See Response to Motion to Dismiss Count 3, at 7. The United States contends that no violation of the Sixth Amendment to the United States Constitution arises from these offenses under the applicable test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See Response to Motion to Dismiss Count 3, at 7-8. It contends that, under this test, each of the statutes on which it relies to charge offenses requires proof of an additional fact that the others do not. See Response to Motion to Dismiss Count 3, at 7-8. It also asserts that the Double Jeopardy Clause does not prohibit the prosecution from proceeding on several charges against a defendant, including lesser included offenses. See Response to Motion to Dismiss Count 3, at 9. It asserts that the proper procedural solution if the jury convicts Ganadonegro on inconsistent legal theories is for the Court to vacate one of those convictions. See Response to Motion to Dismiss Count 3, at 9.
On January 31, 2012, Ganadonegro filed his Reply. See Defendant's Reply to the Government's Response to the Motion to Dismiss (Doc. 242)("Reply"). He asserts that the United States puts forward an implausible argument that, "so long as it relies on the same factual predicate, it is free to stand before different juries and argue different criminal theories of liability without the second jury ever learning that the Government previously presented an inconsistent theory of guilt." Reply at 2. It argues that fundamental fairness requires that a defendant be able to present evidence of the inconsistent theories which the prosecutor made before a jury in a
At the hearing on February 2, 2012, Ganadonegro emphasized, in support of his due-process argument, that a jury may be confused when it is dealing with multiple crimes that require different levels of mens rea. See Transcript of Hearing at 4:1-15 (taken February 2, 2012)(Converse)("Tr.").
The Court inquired how Ganadonegro planned to use the prosecutor's statements from the previous trial in the upcoming trial. See Tr. at 40:1-14 (Court). Ganadonegro stated that the only statement he currently planned to use were statements to the effect that the United States proceeded on a first-degree murder theory at the previous trial and other related statements regarding his mens rea. See Tr. at 40:19-25 (Pori). The Court asked for clarification whether Ganadonegro intended to read only statements the attorneys had made in closing argument, to which Ganadonegro responded that he planned to do so. See Tr. at 41:1-8 (Court, Pori). Ganadonegro agreed that he would not discuss that a previous trial occurred, that there was a mistrial, or what the division of the jury was. See Tr. at 41:9-14 (Court, Pori). Ganadonegro asserted that he would use these statements to illustrate that the United States has admitted that it was wrong in terms of the theory on which it proceeded at the first trial and that it could be wrong again. See Tr. at 41:23-42:13 (Pori). He asserted that the jury should be able to consider this evidence. See Tr. at 42:14-21 (Pori). The Court
The United States asserted that it should not be bound by the previous theory it pursued at the trial which ended in a mistrial. See Tr. at 47:4-9 (Pena). It argued that a search for the truth requires that it be able to proceed on a different theory if the case develops in a manner where an alternate theory is more plausible. See Tr. at 47:4-16 (Pena). It noted that many of the cases Ganadonegro has cited involve much different circumstances, where there are irreconcilable inconsistencies among prosecutors' arguments in trials of different defendants — a situation which it argued is distinguishable from the one before the Court. See Tr. at 47:17-24 (Pena). It contended that different mens rea requirements are not factual inconsistencies. See Tr. at 47:25-48:6 (Pena). It asserted that Ganadonegro has injected factual inconsistencies in the case when one considers the statements he made to federal agents regarding whether he shook Q.S. compared to statements he made at trial about that subject. See Tr. at 48:7-49:1 (Pena). The United States argued that it is highly unusual for a court to allow a prosecutor's arguments from a previous trial as evidence in a subsequent trial. See Tr. at 49:5-16 (Pena). The Court noted that there may be natural checks and balances in place that prevent this issue from arising frequently, as there are few retrials, and a defendant may not want information from a previous trial made available to the jury. See Tr. at 50:10-17 (Court). The United States asserted that this evidence would also be subject to rules 401 and 403 of the Federal Rules of Evidence. See Tr. at 50:18-51:12 (Pena). The United States asserted that, if the Court is inclined to allow these statements in as evidence, it should apply the analysis that the United States Court of Appeals for the Second Circuit did in United States v. McKeon, 738 F.2d 26 (2d Cir.1984), in terms of putting in place procedural safeguards before allowing in this evidence. See Tr. at 52:7-53:4 (Pena).
The Court noted that it is common in civil cases for attorneys to have to remain conscious that their arguments could at some point be used at a later time against their client. See Tr. at 53:9-16 (Court). The Court also noted that the United States is different from many clients in terms of how much authority the United States Attorney's Office has in asserting the position of the client. See Tr. at 53:19-23 (Court). The United States argued that a prosecutor is not necessarily a proper agent of the party for purposes of the admission by party opponent rule. See Tr. at 53:24-54:4 (Pena). The United States contended that closing arguments are not evidence. See Tr. at 54:8-15
Some courts have recognized that due process prevents the prosecution from presenting inherently factually contradictory theories in different criminal trials. See Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir.2000). As the United States Court of Appeals for the Eighth Circuit has stated, however, this restriction applies only in limited circumstances and almost exclusively in cases involving multiple defendants. Smith v. Groose, 205 F.3d at 1051-52. The Eighth Circuit provides a helpful factual illustration of a typical case where such a violation arises and explains how infrequently these situations arise:
Smith v. Groose, 205 F.3d at 1051-52 (citations omitted). Other federal courts and judges have reached similar conclusions. See Thompson v. Calderon, 120 F.3d 1045, 1057-59 (9th Cir.1997) ("Here, little about the trials remained consistent other than the prosecutor's desire to win at any cost."), rev'd on other grounds 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998); Drake v. Kemp, 762 F.2d 1449, 1478-79 (11th Cir.1985) (Clark, J., concurring)("As the state habeas judge recognized, the prosecution's theories of the same crime in the two different trials negate one another. They are totally inconsistent. This flip flopping of theories of the offense was inherently unfair.").
Courts have taken a realistic approach to applying these due-process restrictions given the facts of a particular case. Courts presented with situations where there are genuine evidentiary disputes as to who was responsible for a crime among various defendants have shown greater willingness to permit a prosecutor to argue inconsistent theories in separate trials. See Beathard v. Johnson, 177 F.3d 340, 348 (5th Cir.1999)("The record does not support such a claim. Price had two live eyewitnesses to the crime, both charged with capital murder and both accusing the other of being the most culpable.... Price, as well as every juror involved, knew that both of the stories could not have been true."); Parker v. Singletary, 974 F.2d 1562, 1578 (11th Cir.1992)("But no due process violation occurred, because there was no necessary contradiction between the state's positions in the trials of the three co-defendants. Given the uncertainty of the evidence, it was proper for the prosecutors in the other co-defendants' cases to argue alternate theories as to the facts of the murder."). Additionally, new evidence or new developments in a case can sometimes justify inconsistent theories at the trials of multiple defendants:
Nguyen v. Lindsey, 232 F.3d 1236, 1240-41 (9th Cir.2000) (citations omitted).
The Fifth Amendment to the United States Constitution's guarantee that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb," U.S. Const. amend. V. This amendment protects individuals not only from "successive prosecutions, but also [from] successive punishments for the same offense." See United States v. Morris, 247 F.3d 1080, 1083 (10th Cir.2001) (citing United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)). Accordingly, the United States Court of Appeals for the Tenth Circuit's "jurisprudence establishes that multiplicitous sentences violate the Double Jeopardy Clause." United States v. McCullough, 457 F.3d 1150, 1162 (10th Cir.2006) (internal quotation marks omitted). "Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior." United States v. McCullough, 457 F.3d at 1162 (quoting United States v. Johnson, 130 F.3d 1420, 1424 (10th Cir. 1997)). "Although multiplicity is not fatal to an indictment, multiplicitous counts which may result in multiplicitous convictions are considered improper because they allow multiple punishments for a single criminal offense." United States v. McCullough, 457 F.3d at 1162 (internal quotation marks omitted).
The issue of multiplicity may arise when a defendant is faced with an indictment charging multiple violations of the same statute from relatively contemporaneous conduct, such as multiple assault charges stemming from two episodes concerning a prison guard occurring close in time, see United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.1997) (discussing multiple 18 U.S.C. § 111 charges), abrogated on other grounds by Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), or simultaneously mailing to the IRS several different false documents in support of a single tax return, see United States v. Bettenhausen, 499 F.2d 1223, 1234 (10th Cir.1974). In such situations, the central question is often whether the underlying conduct is part of the same transaction or comprises distinct episodes that can be punished separately. See, e.g., United States v. Neha, No. 04-1677, 2007 WL 7017193, at *2-3 (D.N.M. Feb. 18, 2007) (Browning, J.)(concluding that the offenses charged in four counts constituted separate acts and were not multiplicitous charges for the same offensive conduct, because there was more than one rape, because the defendant was the principal in one rape and the aider and abettor in the other, and because the alleged crimes likely did not occur at the same time).
The issue of multiplicity may also arise when the defendant is charged with violations of multiple criminal statutes for the same underlying acts or omissions. See United States v. Patterson, 760 F.Supp.2d 1116, 1120 (D.N.M.2009) (Browning, J.). When confronting such a situation, courts employ a two-step test: "A person may be prosecuted for more than one crime based on the same conduct (1) if each crime requires proof of a fact that the other does not, or (2) if Congress has clearly expressed its intent to impose cumulative punishment for the same conduct under different statutory provisions." United States v. Pearson, 203 F.3d 1243,
The Blockburger v. United States rule is often known as the "same elements test." United States v. Pearson, 203 F.3d at 1268. "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. 180. "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. 180 (internal quotation marks omitted).
As the Supreme Court of the United States has noted, in the related context of determining when a jury instruction for a lesser-included offense may be given, an elements test is "certain and predictable.... [b]ecause the elements approach involves a textual comparison of criminal statutes and does not depend on inferences that may be drawn from evidence introduced at trial." Schmuck v. United States, 489 U.S. 705, 720, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). See United States v. Greene, 239 Fed.Appx. at 436 (discussing Schmuck v. United States in context of the Blockburger v. United States test). The Supreme Court has clarified, however, that the Blockburger v. United States test applies only to charges or convictions asserting violations of separate statutes, and not to separate subsections of the same criminal provision. See Sanabria v. United States, 437 U.S. 54, 70 n. 24, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (noting that the Blockburger v. United States test is used "to determine whether a single transaction may give rise to separate prosecutions, convictions, and/or punishments under separate statutes").
When confronted with a multiplicitous indictment, a trial court has the discretion to dismiss the multiplicitous counts or to require the government to elect between the multiplicitous counts before trial, or to vacate one of the multiplicitous convictions after trial. See United States v. Johnson, 130 F.3d at 1426 (citing United States v. Throneburg, 921 F.2d 654, 657 (6th Cir.1990)). If the trial court allows multiplicitous charges to go to the jury, however, the options are more limited: "Where multiplicitous convictions are found, `the only remedy ... is ... to vacate one of the underlying convictions as well as the ... sentence based upon it.'" United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir.2007)(alterations in original)(quoting Rutledge v. United States, 517 U.S. 292, 301-02, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996)). The risk inherent in a failure to dispose of multiplicitous charges before trial is that it "may falsely suggest to a jury that a defendant has committed not one but several crimes." United States v. Johnson, 130 F.3d at 1426 (internal quotation marks omitted). "Once such a message is conveyed to the jury, the risk increases that the jury will be diverted from a careful analysis of the conduct at issue, and will reach a compromise verdict or assume the defendant is guilty on at least some of the charges." United States v. Johnson, 130 F.3d at 1426 (internal quotation marks omitted).
The admission-by-a-party-opponent exclusion from the general hearsay rule is defined as follows:
The statement is offered against an opposing party and:
Fed.R.Evid. 801(d)(2). As the Tenth Circuit has stated:
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 667 (10th Cir.2006)(alterations omitted)(internal quotation marks omitted).
The Tenth Circuit has not expressly decided whether government attorneys' statements are admissions by party opponents. The Tenth Circuit has assumed without deciding "that the government's statements in a brief are admissible as the admission of a party opponent," but noted that "some courts have declined, for reasons of policy, to hold the government to the statements of its agents in criminal cases." In re Antrobus, 563 F.3d 1092, 1099 n. 3 (10th Cir.2009) (citing United States v. Kattar, 840 F.2d 118 (1st Cir. 1988); United States v. Powers, 467 F.2d 1089, 1095 (7th Cir.1972)). Many circuits have recognized that a defendant may admit statements made by government attorneys and some other government agents under the rules for admissions by party opponents. In the context of a government memorandum and government brief drafted in another case by an attorney in the Department of Justice, the United States Court of Appeals for the First Circuit permitted the use, in a separate criminal case, of these statements by government attorneys as admissions by party opponent. See United States v. Kattar, 840 F.2d at 126-27, 130-31. The First Circuit stated:
United States v. Kattar, 840 F.2d at 130-31 (footnotes omitted) (citations omitted)(quoting United States v. Morgan, 581 F.2d 933, 937 n. 10 (D.C.Cir.1978); United States v. Powers, 467 F.2d at 1097 n. 1 (Stevens, J., dissenting)).
The United States Court of Appeals for the District of Columbia has similarly rejected arguments that the government is not a party opponent:
United States v. Morgan, 581 F.2d at 937-38 (footnotes omitted). The United States Court of Appeals for the Second Circuit "has recognized that the government's attorneys can bind the government with their in-court statements" under the rules for admissions by party opponents. See United States v. Yildiz, 355 F.3d 80, 82 (2d Cir.2004). In a somewhat different context than the rules regarding admissions by party opponents, the United States Court of Appeals for the Fourth Circuit has held: "Further, a clear and unambiguous admission of fact made by a party's attorney in an opening statement in a civil or criminal case is binding upon the party." United States v. Blood, 806 F.2d 1218, 1221 (4th Cir.1986). In comparison, the United States Court of Appeals for the Seventh Circuit has stated: "Based on the common law principle that no individual should be able to bind the sovereign, we generally decline to apply Rule 801(d)(2) to statements made by government employees in criminal cases." United States v. Zizzo, 120 F.3d 1338, 1351 n. 4 (7th Cir. 1997). The Seventh Circuit commented, however, "that a number of courts have rejected that approach when dealing with statements made by government attorneys." United States v. Zizzo, 120 F.3d at 1351 n. 4.
Several circuit courts have declined to permit certain individuals to qualify as the government's agent for purposes of the rule on admissions by party opponents, such as government investigators on which the Department of Justice did not rely or government informants. See United
Some courts have chosen to impose additional limitations on the admissibility of opening statements and closing arguments made in previous criminal trials. The Second Circuit has been the primary circuit court that has dealt with admissibility of prior closing arguments and opening statements in a subsequent criminal trial. See, e.g., United States v. McKeon, 738 F.2d at 33. It has recognized "that prior opening statements are not per se inadmissible in criminal cases," because "[t]o hold otherwise would not only invite abuse and sharp practice but would also weaken confidence in the justice system itself by denying the function of trials as truth-seeking procedures." United States v. McKeon, 738 F.2d at 31. It qualified this statement, however, when it said that it was "not willing ... to subject such statements to the more expansive practices sometimes permitted under the rule allowing use of admissions by a party-opponent." United States v. McKeon, 738 F.2d at 31. In adopting restrictions on the use of this evidence, the Second Circuit expressed some skepticism towards the general policy behind the rule governing admissions by party opponents:
United States v. McKeon, 738 F.2d at 32. As a safeguard on the use of these prior arguments evidence, the Second Circuit imposed various restrictions on their use: (i) "the district court must be satisfied that the prior argument involves an assertion of fact inconsistent with similar assertions in a subsequent trial"; (ii) the district court must determine "that the statements of counsel were such as to be the equivalent of testimonial statements" made by the client; and (iii) "the district court must determine by a preponderance of the evidence that the inference that the proponent of the statements wishes to draw `is a fair one and that an innocent explanation for the inconsistency does not exist.'" United States v. Ford, 435 F.3d 204, 215 (2d Cir.2006). The Second Circuit has further held: "[S]peculations of counsel, advocacy as to the credibility of witnesses, arguments as to the weaknesses in the prosecution's case or invitations to a jury to draw certain inferences should not be admitted." United States v. McKeon, 738 F.2d at 33. The United States Court of Appeals for the Eleventh Circuit has adopted many of these same restrictions
As justification for these restrictions, the Second Circuit provided the following policy rationale:
United States v. McKeon, 738 F.2d at 32-33. While United States v. McKeon dealt
While the Tenth Circuit has not expressly disagreed with the limitations that the Second Circuit imposed in United States v. McKeon, it has stated: "We express some doubt as to the legal value of McKeon's procedural safeguards." United States v. Pursley, 577 F.3d 1204, 1226 (10th Cir. 2009). It further criticized this decision when it said:
United States v. Pursley, 577 F.3d at 1226. The Tenth Circuit declined to decide whether it would follow the Second Circuit. See United States v. Pursley, 577 F.3d at 1226 ("Ultimately, however, we need not decide whether to adopt the Second Circuit's approach in McKeon."). Notably, the Tenth Circuit characterized the procedural safeguards in United States v. McKeon as an embodiment of "various practical and constitutional concerns" as opposed to any restriction that the Federal Rules of Evidence impose. United States v. Pursley, 577 F.3d at 1226.
Other courts have criticized the approach in United States v. McKeon. One of the most thorough critiques of this Second Circuit decision comes from a decision by the Honorable Dean D. Pregerson, United States District Judge for the Central District of California. See United States v. Bakshinian, 65 F.Supp.2d 1104, 1105-09 (C.D.Cal.1999)(Pregerson, J.). Judge Pregerson concluded that the United States is a party opponent within the definition of rule 801(d)(2)(A) and rejected, in light of the Federal Rules of Evidence, "the common law principle that no individual should be able to bind the sovereign." United States v. Bakshinian, 65 F.Supp.2d at 1105. Judge Pregerson criticized a Seventh Circuit decision that reached a contrary holding and followed two other circuit court decisions that concluded that this rule does apply to the United States. See United States v. Bakshinian, 65 F.Supp.2d at 1105 (citing United States v. Zizzo, 120 F.3d at 1351 n. 4). Judge Pregerson further noted that, unlike a typical government employee, "government prosecutors have the power to bind the sovereign." United States v. Bakshinian, 65 F.Supp.2d at 1105. While Judge Pregerson noted that the five policy concerns outlined in United States v. McKeon may have some relevance when defense counsel's opening statement or closing argument is used against the defendant in a subsequent trial, he rejected the concept that these policy considerations were as significant when a defendant seeks to use the same evidence against the government. See United States v. Bakshinian, 65 F.Supp.2d at 1107-08. Specifically, Judge Pregerson recognized:
United States v. Bakshinian, 65 F.Supp.2d at 1107-08 (citations omitted). Ultimately, Judge Pregerson declined to adopt the procedural safeguards in United States v. McKeon, and concluded that the rules governing admissions by party opponents as well as rules 401 and 403 of the Federal Rules of Evidence provide sufficient safeguards to admission of this evidence. See United States v. Bakshinian, 65 F.Supp.2d at 1108-10.
Rule 403 provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. Under rule 403, the trial court must weigh the proffered evidence's probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989). "[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir.2006)(quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991)). The Tenth Circuit has recently reminded district courts that they should be "mindful" that "exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly." United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010).
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court's discretion, see United
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008)(quoting 1 S. Childress & M. Davis, Federal Standards of Review § 4.02, at 4-16 (3d ed.1999)). See United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984)("Assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403....").
Evidence may be unfairly prejudicial if it would likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury's attitude toward a particular matter. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir.1999). Evidence is not unfairly prejudicial merely because it damages a party's case. See United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir. 2008); United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir.2003); United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir.1991). Rather, "[t]o be unfairly prejudicial, the evidence must have `an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Caraway, 534 F.3d at 1301 (quoting Fed. R.Evid. 403 advisory committee note).
The Court will not dismiss any claims in the Superseding Indictment on the basis that the charges create the potential for due-process violations. Because cumulative punishments for both Counts 1 and 2 would result in a double-jeopardy violation, the Court will ensure that the jury instructions inform the jury that they may not convict Ganadonegro on both Counts 1 and 2. The Court will not, however, dismiss any Counts or require the United States to elect certain Counts to present at trial. Because the United States' statements in the previous trial are admissions by party opponents, the Court will permit Ganadonegro to use the one statement he has informed the Court he plans to use as evidence in the upcoming trial. Ganadonegro should not in any way mention or imply that there was a previous trial or that the statement was made to a jury. Any additional statements Ganadonegro seeks to offer from the prosecution's prior opening statement or closing argument will likewise be subject to the restrictions contained in rule 401 and 403 and must be pre-approved by the Court.
Some courts have recognized that due process prevents the prosecution from presenting inherently factually contradictory theories in different criminal trials. See Smith v. Groose, 205 F.3d at 1052. The Court has not located any Tenth Circuit or Supreme Court precedent that directly addresses
Ganadonegro has not cited any authority where a court has found a due-process violation in factual circumstances similar to those in this case. The United States is not attempting to argue, as part of one proceeding, that one person killed Q.S., and then turn around and argue in this proceeding that Ganadonegro killed her. Cases with that factual pattern present a more compelling argument for a due-process violation in the absence of some justification for the prosecution's inconsistent arguments in each defendant's case. It is undisputed that the United States has not prosecuted anyone else for Q.S.'s death. Additionally, there are no indications that the United States intends to present evidence at the upcoming trial that is materially different from the evidence it presented at the previous trial. Ganadonegro conceded at the hearing on February 2, 2012, that there would be no material factual inconsistency in the United States' upcoming presentation of its case compared to that in the previous trial. See Tr. at 38:14-19, 39:12-25 (Pori). Putting aside the issue of a double-jeopardy violation, Ganadonegro has not presented to the Court any authority standing for the proposition that a due-process violation occurs in cases where both trials involve the same defendant, when the prosecution proceeds at a subsequent trial on a theory that relies upon a different mens rea than the theory it asserted at a previous trial that ended in mistrial. None of the authority Ganadonegro cites regarding a due-process violation involves a factual pattern where there is only one defendant. When the United States proceeds in this manner, there is no "use of inherently factually contradictory theories," which some courts have held "violates the principles of due process." Smith v. Groose, 205 F.3d at 1051-52. While it may be more confusing for the jury to have to address several Counts as opposed to one, Ganadonegro has not articulated a legal basis that prevents the United States from proceeding on all these Counts. That the charge presented to the jury at the upcoming trial may be confusing to the jury is irrelevant unless Ganadonegro can articulate a reason why doing so is legally impermissible.
Furthermore, the Court sees no reason to extend the holding of these due process cases to the current factual scenario. "Any lawyer who has ever tried a case knows that trial preparation is not a static process." Nguyen v. Lindsey, 232 F.3d at 1240-41. Additionally, the Court does not conclude that the prosecution's reevaluation of the theory of its case in light of a mistrial amounts to a due process violation. This case is not one where the prosecution plans to "essentially ridicule[ ] the theory [it] had used to obtain a conviction" at another defendant's trial. Nguyen v. Lindsey, 232 F.3d 1236, 1240-41. The United States has not yet secured a conviction against any defendant in relation to the death of Q.S. Because the last case ended in a mistrial when the jury could not reach a unanimous verdict, none of the
At least based on the results of the previous trial, the United States appears to have overcharged Ganadonegro by seeking to convict him of first degree murder. Some jurors did not believe that Ganadonegro intentionally or knowingly committed child abuse. The jurors represented that it was undisputed that Ganadonegro killed Q.S. The Court then cannot say that the United States' theory lacked any basis in the law or in the facts of the case. The law should not penalize the United States for losing the first trial, learning from it, and re-charging the defendant with a less serious crime or one that has a lower mens rea requirement. The United States has followed the proper procedures, and the Court does not see any fundamental inconsistency with how they have proceeded in the previous trial and how they plan to proceed in the upcoming trial.
The Tenth Circuit's "jurisprudence establishes that multiplicitous sentences violate the Double Jeopardy Clause." United States v. McCullough, 457 F.3d at 1162 (internal quotation marks omitted). "Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior." United States v. McCullough, 457 F.3d at 1162. "Although multiplicity is not fatal to an indictment, multiplicitous counts which may result in multiplicitous convictions are considered improper because they allow multiple punishments for a single criminal offense." United States v. McCullough, 457 F.3d at 1162 (internal quotation marks omitted).
The issue of multiplicity may also arise when the defendant is charged with violations of multiple criminal statutes for the same underlying acts or omissions. See United States v. Patterson, 760 F.Supp.2d at 1120. When confronting such a situation, courts employ a two-step test: "A person may be prosecuted for more than one crime based on the same conduct (1) if each crime requires proof of a fact that the other does not, or (2) if Congress has clearly expressed its intent to impose cumulative punishment for the same conduct under different statutory provisions." United States v. Pearson, 203 F.3d at 1267-68 (citations omitted). When, as is often the case, there is no clearly discernible congressional intent to impose cumulative punishment, courts use the rule of statutory construction described in Blockburger v. United States. See United States v. Greene, 239 Fed.Appx. at 436.
The Blockburger v. United States rule is often known as the "same elements test." United States v. Pearson, 203 F.3d at 1268. "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only
As the Supreme Court has noted in the related context of determining when a jury instruction for a lesser-included offense may be given, an elements test is "certain and predictable .... [b]ecause the elements approach involves a textual comparison of criminal statutes and does not depend on inferences that may be drawn from evidence introduced at trial." Schmuck v. United States, 489 U.S. at 720, 109 S.Ct. 1443. See United States v. Greene, 239 Fed.Appx. at 436 (discussing Schmuck v. United States in context of the Blockburger v. United States test). The Supreme Court has clarified, however, that the Blockburger v. United States test applies only to charges or convictions asserting violations of separate statutes and not to separate subsections of the same criminal provision. See Sanabria v. United States, 437 U.S. at 70 n. 24, 98 S.Ct. 2170 (noting that the Blockburger v. United States test is used "to determine whether a single transaction may give rise to separate prosecutions, convictions, and/or punishments under separate statutes").
The Superseding Indictment contains the following three charges: (i) second-degree murder in violation of 18 U.S.C. § 1111; (ii) voluntary manslaughter in violation of 18 U.S.C. § 1112; and (iii) negligent child abuse resulting in death in violation of N.M.S.A.1978, § 30-6-1(D)(1) and 18 U.S.C. § 13. See Superseding Indictment at 1-2.
18 U.S.C. § 13. N.M.S.A.1978, § 30-6-1(D)(1) provides: "Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be: (1) placed in a situation that may endanger the child's life or health." N.M.S.A.1978, § 30-6-1(D)(1).
The elements of an offense under 18 U.S.C. § 1111(a) are as follows: (i) unlawful killing; (ii) of a human being; (iii) with malice aforethought; and (iv) causation. See 18 U.S.C. § 1111(a).
Count 1, charging second-degree murder, and Count 2, charging voluntary manslaughter, are multiplicitous to the extent that cumulative punishment for both would result in a double-jeopardy violation. The Supreme Court has recognized that the "Fifth Amendment forbids... cumulative punishment for greater and lesser included offenses." Brown v. Ohio,
Count 2 and Count 3 are not multiplicitous. Count 2 requires proof that the defendant commit the killing upon a sudden quarrel or heat of passion. See 18 U.S.C. § 1112(a). Acting based upon a sudden quarrel or heat of passion is an additional fact that the prosecution does not need to prove under N.M.S.A.1978, § 30-6-1(D)(1). As charged in the Superseding Indictment, Count 3 has the following elements: (i) causing or permitting; (ii) a child; (iii) to be placed in a situation that causes the child's death; (iv) which is a situation that the defendant knew or should have known would endanger the child's life or health; (v) and that the defendant acted in reckless disregard to the child's life or health in placing the child in the situation that caused its death. N.M.S.A.1978, § 30-6-1(A)(3), (D)(1), (F). The following elements are additional facts that the United States does not need to prove under 18 U.S.C. § 1111(a): (i) committing the offense against a child, defined by statute as a person less than eighteen years of age, see N.M.S.A.1978, § 30-6-1(D)(1); (ii) that the defendant knew or should have known his conduct would endanger the child's life or health; and (iii) that the defendant acted in reckless disregard to the child's life or health by placing the child in the situation that cause its death. Child abuse resulting in death is not a lesser included offense of second-degree murder, because the offense is not "necessarily committed in carrying out of the greater crime." Black's Law Dictionary, supra, at 1187. It is not necessary for there to be a sudden quarrel or heat of passion to commit an offense under
The Court will permit the United States to proceed to trial on all three Counts. Because cumulative punishment for both Counts 1 and 2 would result in a double-jeopardy violation, the Court will ensure that the jury instructions inform the jury that they may not convict Ganadonegro on both Counts 1 and 2. The Court will not, however, dismiss any Counts or require the United States to elect certain Counts to present at trial.
Because the United States is a party for purposes of the admission by party opponent rule and because attorneys in the Department of Justice are the United States' agents, the Court concludes that the statements which the Assistant United States Attorney made during closing argument as part of the previous trial qualify as admissions by party opponents. Because Tenth Circuit precedent indicates that the Tenth Circuit would not impose additional procedural safeguards outside those contained in the Federal Rules of Evidence and because doing so advances no sound policy goal, the Court will decline
The Tenth Circuit has not decided whether statements by government attorneys qualify as admissions by party opponents under rule 801(d)(2). The Tenth Circuit has assumed without deciding "that the government's statements in a brief are admissible as the admission of a party opponent," but noted that "some courts have declined, for reasons of policy, to hold the government to the statements of its agents in criminal cases." In re Antrobus, 563 F.3d at 1099 n. 3. Many circuits have recognized that, under the rules for admissions by party opponents, a defendant may admit statements that government attorneys and some other government agents make. In the context of a government memorandum and government brief drafted in another case by an attorney in the Department of Justice, the First Circuit permitted the use in a separate criminal case of these statements by government attorneys as admissions by party opponent. See United States v. Kattar, 840 F.2d at 126-27, 130-31. The First Circuit stated:
United States v. Kattar, 840 F.2d at 130-31 (footnotes omitted) (citations omitted)(quoting United States v. Morgan, 581 F.2d at 937 n. 10; United States v. Powers, 467 F.2d at 1097 n. 1 (Stevens, J., dissenting)).
The D.C. Circuit has similarly rejected arguments that the government is not a party opponent:
United States v. Morgan, 581 F.2d at 937-38 (footnotes omitted). The Second Circuit "has recognized that the government's attorneys can bind the government with their in-court statements" under the rules for admissions by party opponents. See United States v. Yildiz, 355 F.3d at 82. In a somewhat different context than the rules regarding admissions by party opponents, the Fourth Circuit has held: "Further, a clear and unambiguous admission of fact made by a party's attorney in an opening statement in a civil or criminal case is binding upon the party." United States v. Blood, 806 F.2d at 1221. In comparison, the Seventh Circuit has stated: "Based on the common law principle that no individual should be able to bind the sovereign, we generally decline to apply Rule 801(d)(2) to statements made by government employees in criminal cases." United States v. Zizzo, 120 F.3d at 1351 n. 4. The Seventh Circuit commented, however, "that a number of courts have rejected that approach when dealing with statements made by government attorneys." United States v. Zizzo, 120 F.3d at 1351 n. 4.
Nearly every circuit court that has addressed the issue has concluded that the United States can qualify as a party under the admission by party opponent rule. Adhering to the common-law rule that the sovereign cannot be bound by its agents' statements would be unwise in light of the adoption of the Federal Rules of Evidence. The Federal Rules of Evidence abolished, modified, or took a position on many common-law evidence rules and principles, including those governing admissions by party opponents. See, e.g., Fed.R.Evid. 801(d)(2) advisory committee's note (taking a position on the scope of common law rules governing "the admissibility of statements by agents" based on "[d]issatisfaction with this loss of valuable and helpful evidence ... increasing" and "[a] substantial trend favor[ing] admitting statements related to a matter within the scope of the agency or employment"); Huff v. White Motor Corp., 609 F.2d 286, 290-91 (7th Cir.1979)(recognizing that the Federal Rules of Evidence govern the admissibility of "privity-based admissions" as opposed to the common-law rules governing admissibility of those statements).
One notable exception is that the Federal Rules of Evidence expressly left undisturbed common-law principles on privileges. See Fed.R.Evid. 501 (stating that "[t]he common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless" the United States Constitution, a federal statute, or Supreme Court rule provides otherwise). Notably, that express preservation of the common law in some rules of evidence weighs in favor of a finding that the drafters of the Federal Rules of Evidence, as well as Congress who adopted them, intended to abolish the common-law rules on admissions by party opponents. The rules of statutory construction apply to the Federal Rules of
While courts have had a more difficult time concluding whether a case agent or a government informant qualifies as an agent under rule 801(d)(2)(D), courts have almost uniformly concluded that government attorneys, including Department of Justice attorneys, are agents under this rule. As Judge Pregerson noted, unlike a typical government employee, "government prosecutors have the power to bind the sovereign." United States v. Bakshinian, 65 F.Supp.2d at 1105. Additionally, the issue is less complex when it comes to the Department of Justice as opposed to other federal agencies, which in many cases must rely on the Department of Justice to institute litigation, and have little or no authority to proceed independently in federal court. See, e.g., Rapanos v. United States, 547 U.S. 715, 789, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (Stevens, J. dissenting)(noting that the Environmental Protection Agency referred a water dispute to the Department of Justice when it became necessary to proceed to federal court); United States v. Appel, 210 F.3d 385, 2000 WL 27878, at *3 (9th Cir.2000) (unpublished table decision)("Appel continued to refuse to comply with the Order
The Court concludes that treating government attorneys, particularly Department of Justice attorneys, as agents of the United States is the correct approach. The Court notes that, in the civil context, attorneys must generally be careful with written or oral statements they make during litigation, as those statements may later be used against their client. See, e.g., Rooms v. SEC, 444 F.3d 1208, 1213 (10th Cir.2006) ("A pleading prepared by an attorney is an admission, however, because the attorney presumably speaks for the litigant."); United States v. Blood, 806 F.2d at 1221 ("Further, a clear and unambiguous admission of fact made by a party's attorney in an opening statement in a civil or criminal case is binding upon the party."). Attorneys also have significant authority to concede a client's position and thus bind the client, in both the criminal and civil context. See United States v. Ventura-Perez, 666 F.3d 670, 676 (10th Cir.2012) ("Courts could not function properly if concessions by counsel cannot be relied upon."). The United States has presented no persuasive arguments that would justify departing from this general rule that attorney's statements can bind the client.
There can be no dispute that the United States Attorney's Office, which is within the Department of Justice, has considerable discretion to decide how it prosecutes cases. Congress has given the United States Attorney's Office the general power to prosecute all criminal offenses against the United States:
28 U.S.C. § 547. "With a few exceptions, the United States Attorneys have been delegated the authority to make [many] important and sensitive decisions that drive criminal prosecutions." United States v. Giangola, No. 07-706, 2008 WL 3992138, at *4 (D.N.M. May 12, 2008) (Browning, J.). The Supreme Court has likewise broadly deferred to prosecutors' discretion to determine how to proceed in a criminal case:
Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (footnotes omitted) (citations omitted). For most cases, "the prosecutorial discretion of the U.S. Attorney is vast and unchecked by any formal, external constraints or regulatory mechanisms." Richard S. Frase, The Decision to File Federal Criminal Charges: A Quantitive Study of Prosecutorial Discretion, 47 U. Chi. L.Rev. 246, 303 (1980).
For those reasons, the United States Attorney's Office is, under rule 801(d)(2)(C), "a person whom the party," the United States in this case, "authorized to make a statement on the subject." Fed.R.Evid. 801(d)(2)(C). Congress has expressly authorized the United States Attorney's Office to prosecute crimes in federal courts and thus to speak on the United States' behalf on these matters in a way that will bind the United States. As the advisory committee note to rule 801(d)(2)(C) contemplates, there is a principal-agent relationship between the United States and the United States Attorney's Office for the purposes of prosecuting criminal matters — which includes within the scope of the agency making statements in federal court on those matters. See Fed.R.Evid. 801(d)(2)(C) advisory committee's note (describing the relationship contemplated in rule 801(d)(2)(C) as a "principal" and "agent" relationship). Under rule 801(d)(2)(D), the United States Attorney's Office, based on its general agency relationship with the United States to prosecute crimes, is "the party's agent or employee" who is capable of making statements "on a matter within the scope of that relationship while it existed." Fed. R.Evid. 801(d)(2)(D). Statements in closing argument regarding the defendant's guilt or innocence are a matter within the scope of the agency relationship — the prosecution of criminal offenses against the United States. See Fed.R.Evid. 801(d)(2)(D); Rainbow Travel Serv., Inc. v. Hilton Hotels Corp., 896 F.2d 1233, 1242 (10th Cir.1990) (recognizing that a shuttle bus driver's statement regarding a hotel's reservation practices was admissible under
Lastly, the United States assertions' that its closing argument and opening statement from the previous trial are not evidence is unpersuasive. While it is true that opening statements and closing arguments are not evidence as a general matter, see United States v. Rogers, 556 F.3d 1130, 1141 (10th Cir.2009) ("Moreover, the jury was properly instructed that closing arguments are not evidence and that Defendant should only be convicted on the basis of evidence submitted at trial."); Tenth Circuit Pattern Jury Instructions Criminal § 1.06, at 13 (2011)(Evidence — Defined)("The lawyers' statements and arguments are not evidence."), the Tenth Circuit has recognized that a party may use an opponent's closing statements from a prior proceeding as an admission by party opponent:
United States v. McElhiney, 85 Fed.Appx. 112, 115 (10th Cir.2003) (unpublished).
The Assistant United States Attorney's statement from its closing argument that "justice demands that you convict him of first degree, intentional child abuse because he shook her knowingly, intentionally, and willfully," Reply at 5-6, contains both factual assertions and legal conclusions. The Tenth Circuit has encouraged "generous treatment" of admissibility when it comes to admissions by party opponents:
Grace United Methodist Church v. City of Cheyenne, 451 F.3d at 667. Consequently, the Court concludes that the prosecutor's statements from its prior closing argument qualify as admissions by a party opponent. When a civil lawyer represents a client, the lawyer must take directions from the client. A prosecutor, however, often functions as the equivalent of both the client and the attorney. The "public" is an amorphous client. It is hard to imagine a closer relationship between the agent and the principal than the one embodied by a prosecutor. It does not appear unfair to hold a prosecutor responsible for his or her own statements during a retrial.
The Tenth Circuit has not decided whether any additional procedural safeguards outside those contained in the Federal Rules of Evidence would apply if a defendant sought to use a prosecutor's statement in a previous trial in a subsequent trial in the same case. Based on indications in Tenth Circuit precedent that it would not impose additional procedural safeguards, because these procedural safeguards lack any basis in the Federal Rules of Evidence, and because they undercut the adversarial and truth-seeking purposes underlying the rules governing admissions by party opponents, the Court concludes that the Tenth Circuit would not adopt these additional procedural safeguards. These additional procedural safeguards come primarily from the United States v. McKeon decision from the Second Circuit.
The Second Circuit in United States v. McKeon recognized "that prior opening statements are not per se inadmissible in criminal cases," because "[t]o hold otherwise would not only invite abuse and sharp practice but would also weaken confidence in the justice system itself by denying the function of trials as truth-seeking procedures." 738 F.2d at 31. It qualified this statement, however, when it said that it was "not willing ... to subject such statements to the more expansive practices sometimes permitted under the rule allowing use of admissions by a party-opponent." United States v. McKeon, 738 F.2d at 31. In adopting restrictions on the use of this evidence, the Second Circuit expressed some skepticism towards the general policy behind the rule governing admissions by party opponents:
United States v. McKeon, 738 F.2d at 32. As a safeguard on the use of these prior arguments evidence, the Second Circuit imposed various restrictions on their use: (i) "the district court must be satisfied that the prior argument involves an assertion of fact inconsistent with similar assertions in a subsequent trial"; (ii) the district court must determine "that the statements of counsel were such as to be the equivalent of testimonial statements" made by the client; and (iii) "the district court must determine by a preponderance of the evidence that the inference that the proponent of the statements wishes to draw `is a fair one and that an innocent explanation for the inconsistency does not exist.'" United States v. Ford, 435 F.3d at 215. The Second Circuit has further held: "[S]peculations of counsel, advocacy as to the credibility of witnesses, arguments as to the weaknesses in the prosecution's case or invitations to a jury to draw certain inferences should not be admitted." United States v. McKeon, 738 F.2d at 33.
While the Tenth Circuit has not expressly disagreed with the limitations the Second Circuit has imposed in United States v. McKeon, it has stated: "We express some doubt as to the legal value of McKeon's procedural safeguards." United States v. Pursley, 577 F.3d at 1226. It further criticized this decision when it said:
United States v. Pursley, 577 F.3d at 1226. The Tenth Circuit expressly declined to decide whether it would follow the Second Circuit. See United States v. Pursley, 577 F.3d at 1226 ("Ultimately, however, we need not decide whether to adopt the Second Circuit's approach in McKeon."). Notably, the Tenth Circuit characterized the procedural safeguards in United States v. McKeon as an embodiment of "various practical and constitutional concerns" as opposed to any restriction that the Federal Rules of Evidence impose. United States v. Pursley, 577 F.3d at 1226.
Other courts have criticized the approach in United States v. McKeon. One of the most thorough critiques of this Second Circuit decision comes from a decision by Judge Pregerson from the Central District of California. See United States v. Bakshinian, 65 F.Supp.2d at 1105-09. While Judge Pregerson noted that the five policy concerns outlined in United States v. McKeon may have some relevance when the opening statement or closing argument of defendant's counsel is used against the defendant in a subsequent trial, he rejected the concept that these policy considerations were as significant when a defendant seeks to use the same evidence against the government. See United States v. Bakshinian, 65 F.Supp.2d at 1107-08. Specifically, Judge Pregerson recognized:
United States v. Bakshinian, 65 F.Supp.2d at 1107-08 (citations omitted). Ultimately, Judge Pregerson declined to adopt the procedural safeguards in United States v. McKeon and concluded that the rules governing admissions by party opponents as well as rules 401 and 403 of the Federal Rules of Evidence provide sufficient safeguards to admission of this evidence. See United States v. Bakshinian, 65 F.Supp.2d at 1108-10.
While the Court may not be bound by Tenth Circuit dicta, the Court takes seriously anything that the Tenth Circuit says, at least as persuasive guidance. Cf. Bates v. Dep't of Corr. of State of Kan., 81 F.3d 1008, 1011 (10th Cir.1996)("[A] panel of this Court is bound by a holding of a prior panel of this Court but is not bound by a prior panel's dicta."). The Tenth Circuit's dicta from United States v. Pursley provides a strong indication of how the Tenth Circuit would likely decide this issue. Additionally, the Court believes that this dicta is persuasive and that adopting United States v. McKeon's procedural safeguards is unnecessary. The Tenth Circuit has indicated that it will encourage district courts to balance the relevant considerations under rule 403 when it comes to admission of prior closing arguments and opening statements. A district court has considerable discretion under rule 403 to permit or disallow the admission of problematic evidence in a particular case. See United States v. Lugo, 170 F.3d at 1005;
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. at 384, 128 S.Ct. 1140. Additionally, many opening statements and closing arguments from prior proceedings unrelated to the particular case would be irrelevant and thus inadmissible under rule 401. See Fed.R.Evid. 401.
The factors from United States v. McKeon have no basis in the Federal Rules of Evidence given the lenient rules regarding admissions by party opponents. While the Second Circuit spoke critically of these lenient rules in United States v. McKeon, the Tenth Circuit has encouraged "generous treatment" of admissibility when it comes to admissions by party opponents:
Grace United Methodist Church v. City of Cheyenne, 451 F.3d at 667. While courts can adopt rules for situations that the Federal Rules of Evidence do not expressly contemplate, see, e.g., Ohler v. United States, 529 U.S. 753, 756, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000) ("Rule [103 of the Federal Rules of Evidence] does not purport to determine when a party waives a prior objection, and it is silent with respect to the effect of introducing evidence on direct examination, and later assigning its admission as error on appeal."), the Court believes that they should do so infrequently and avoid on an ad hoc basis imposing requirements on the admissibility of evidence that the rules of evidence do not contemplate. Rule 403 provides a great deal of flexibility and can resolve many of the concerns the procedural safeguards in United States v. McKeon address. Additionally, these procedural safeguards keep out what would in some cases be probative evidence that comes directly from a party's mouth. Placing additional hurdles to the admission of this evidence would run counter to the policies behind the rule governing admissions by party opponents. See Grace United Methodist Church v. City of Cheyenne, 451 F.3d at 667. Consequently, the Court declines to adopt the procedural safeguards outlined in United States v. McKeon.
Rule 401 provides: "Evidence is relevant if: (a) it has any tendency to make a
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court's discretion, see United States v. Lugo, 170 F.3d at 1005, and the trial court's discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d at 1089; United States v. Masters, 622 F.2d at 87-88. As the Supreme Court recently noted:
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. at 384, 128 S.Ct. 1140. See United States v. Abel, 469 U.S. at 54, 105 S.Ct. 465 ("Assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403....").
Evidence may be unfairly prejudicial if it would likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury's attitude toward a particular matter. See United States v. Rodriguez, 192 F.3d at 951. Evidence is not unfairly prejudicial merely because it damages a party's case. See United States v. Caraway, 534 F.3d at 1301; United States v. Curtis, 344 F.3d at 1067; United States v. Martinez, 938 F.2d at 1082. Rather, "[t]o be unfairly prejudicial, the evidence must have `an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Caraway, 534 F.3d at 1301.
Ganadonegro has specifically asserted that he will put forward one statement from the United States' closing argument: "[J]ustice demands that you convict him of first degree, intentional child abuse because he shook her knowingly, intentionally and willfully." Reply at 6. Ganadonegro asserted that he would use these statements to illustrate that the United States has admitted that it was wrong in terms of the theory on which it proceeded at the first trial and that it could be wrong again. See Tr. at 41:23-42:13 (Pori)("They can be wrong. They admit they're wrong. They know they were wrong before."). Given how disputed Ganadonegro's mental state will be, particularly in light of the prior mistrial and the Superseding Indictment
Likewise, rule 403 does not counsel in favor of exclusion of this evidence. The issue of Ganadonegro's mental state will be the focal point of the upcoming trial. The jurors represented that they deadlocked in the previous trial, because they could not agree whether the United States had proved Ganadonegro had the requisite mental state for commission of the offense. The Court would be acting unfairly to Ganadonegro if it excluded evidence that might permit him to raise a reasonable doubt in the jury's mind whether he had the requisite mental state to commit the crime. Ganadonegro agreed that there was no reason for the jury to know about the previous jury trial or the mistrial, so the Court can limit what Ganadonegro says to prevent or to mitigate improper jury speculation. While this evidence will be prejudicial to the United States, parties present evidence largely because it is favorable to their case and/or unfavorable to their opponent's case. "[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d at 638 (emphasis added). The United States has failed to carry that burden to show that there is both unfair prejudice that would also substantially outweigh this evidence's probative value.
Furthermore, Ganadonegro has agreed to certain limits on the presentation of evidence that will avoid many of the United States' concerns about this upcoming trial transforming into a reexamination of the previous trial or an inquiry into the United States Attorney's Office's internal policies or charging decisions. At the February 2, 2012 hearing, the Court asked for clarification whether Ganadonegro intended to read only statements the attorneys had made in closing argument, to which Ganadonegro responded that he planned to do so. See Tr. at 41:1-8 (Court, Pori). Ganadonegro asserted that he would use these statements to illustrate that the United States has admitted that it was wrong in terms of the theory on which it proceeded at the first trial and that it could be wrong again. See Tr. at 41:23-42:13 (Pori). Ganadonegro agreed that he would not discuss that a previous trial occurred, that there was a mistrial, or what the division of the jury was. See Tr. at 41:9-14 (Court, Pori). He asserted that the jury should be able to consider this evidence. See Tr. at 42:14-21 (Pori). The Court expressed hesitance in permitting Ganadonegro to assert that the jury concluded that the United States was wrong in proceeding on the previous theory. See Tr. at 42:22-43:1 (Court). Ganadonegro stated that he believes that he would be able to present this evidence without making an argument to the effect that the jury concluded the United States was wrong. See Tr. at 43:1-19 (Pori). Ganadonegro also represented that he would not call any
United States v. Serawop, 410 F.3d at 665. Criminal negligence under New Mexico law has been defined as including "conduct which is reckless, wanton, or willful." State v. Mascarenas, 129 N.M. 230, 233, 4 P.3d 1221, 1224 (2000). In an analogous context, the Tenth Circuit has recognized that both second-degree murder and involuntary manslaughter encompass reckless behavior, with the difference being the degree of recklessness. See Tenth Circuit Pattern Jury Instructions Criminal § 2.54.1 cmt., at 186 ("Second degree murder involves reckless and wanton disregard for human life that is extreme in nature, while involuntary manslaughter involves reckless and wanton disregard that is not extreme in nature." (citing United States v. Wood, 207 F.3d 1222, 1229 (10th Cir. 2000))).
