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United States v. Russell

United States District Court, D. New Mexico

February 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MELVIN RUSSELL, Defendant.

          ORDER ON STATUS CONFERENCE of FEBRUARY 8, 2018

         THIS MATTER came on for consideration of a status conference held to address all pending motions. Counsel were notified and given the opportunity to present any additional evidence or argument about the proposed testimony of SANE Nurse Susan Eldred. ECF No. 176. Upon consideration thereof:

         A. Reserve Entirely.

         The court will reserve ruling on the following motions until the trial (given proper objection) and will now terminate these motions. Counsel are reminded of the importance of timely objections and offers of proof at trial. Fed.R.Evid. 103(a):

         (1) Defendant Melvin Russell's First Motion In Limine to Exclude Testimony of SANE Nurse Examiner Susan Eldred filed December 12, 2016. ECF No. 107.

         (2) Defendant Melvin Russell's Second Motion In Limine to Exclude Testimony of Susan Eldred, and/or, in the Alternative, for a Daubert Hearing Concerning the Same filed December 12, 2016. ECF No. 109.

         (3) Defendant's Motion to Strike Notice of Intent to Introduce Prior Sexual Assault Evidence Pursuant to Federal Rules of Evidence 404(b) and 413 (Doc. 68) and to Exclude Prior Bad Acts Evidence filed June 14, 2017. ECF No. 146.

         (4) Defendant's Motion for More Definite Statement of Proposed Other Acts Evidence filed December 12, 2016. ECF No. 106. The court is inclined to deny this motion, but will reserve.

         B. Grant in Part and Reserve in Part.

         The court grants in part and reserves in part on the following motion and will terminate it:

         (1) United States's Motion In Limine filed May 13, 2016. ECF No. 66. The court grants the government's motion to prohibit mention before the jury of pretrial rulings (Item No. 2 at 2-3) and plea negotiations (Item No. 3 at 3). Counsel should inform any potential witnesses of such a prohibition if there is a likelihood that such matters might be mentioned. In all other respects, the motion is reserved for trial given proper objection.

         C. Deny.

         The following motion is denied and this constitutes a final ruling on the issue.

         (1) Defendant Melvin Russell's Motion to Preserve Right to Jury Trial filed December 12, 2016. ECF No. 105. Mr. Russell's motion proposes changes to various pattern jury instructions that would instruct the jury on its power to nullify and inform the jury of sentencing ramifications that would follow a guilty verdict. This is not supported by existing law. See United States v. Rith, 164 F.3d 1323, 1338 (10th Cir. 1999) (“To the extent the defendant[] . . . seeks to require courts to facilitate jury nullification, the law is clear: a criminal defendant is not entitled to have the jury instructed that it can, despite finding the defendant guilty beyond a reasonable doubt, disregard the law.”); see also Shannon v. United States, 512 U.S. 573, 579 (1994) (“It is well established that when a jury has no sentencing function, it should be admonished to ‘reach its verdict without regard to what sentence might be imposed.'” (footnote omitted) (quoting Rogers v. United States, 422 U.S. 35, 40 (1975))).

         D.Deny as ...


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