United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
NAHLE'S MOTION TO PRESERVE RIGHT TO JURY TRIAL
MATTER comes before the Court upon Defendant Nahle's
Motion to Preserve Right to Jury Trial, filed January 23,
2018 (Doc. 40). Having reviewed the
parties' pleadings and considered the controlling law,
the Court finds that Defendant Nahle's motion is not
well-taken and, therefore, is DENIED.
Nahle is charged with assaulting and impeding a federal
employee in the performance of his official duties, pursuant
to 18 U.S.C. §§ 111(a)(1) and (b), and 18 U.S.C.
§ 2. Defendant Nahle moves this Court to provide
information to the jury about sentencing [Doc. 40 at 1], and
about the jury's power of nullification [Doc. 40 at
Both requests are denied for the following reasons.
The Defendant Is Not Entitled to a Jury Nullification
jury may choose to disregard the application of law to facts
when rendering its verdict, the Tenth Circuit has repeatedly
affirmed that a Defendant is not entitled to an instruction
advising or encouraging the jury to exercise the power of
nullification. See Crease v. McKune, 189 F.3d 1188,
1194 (10th Cir. 1999) (“We note here that there is no
right to jury nullification.”); United States v.
Rith, 164 F.3d 1323, 1338 (10th Cir. 1999) (“To
the extent the defendant's appeal seeks to permit 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.” (citing United States v.
Grismore, 546 F.2d 844, 849 (10th Cir. 1976))). In
United States v. Gonzalez, the Tenth Circuit framed
the power of nullification as contrary to the juror's
oath, and stated that “[w]hile we recognize that a jury
may render a verdict at odds with the evidence or the law,
neither the court nor counsel should encourage jurors to
violate their oath.” 596 F.3d 1228, 1237 (10th Cir.
2010) (quoting United States v. Trujillo, 714 F.2d
102, 106 (11th Cir. 1983)). Therefore, although a jury can
choose to exercise the power of nullification, the Tenth
Circuit has repeatedly ruled that a defendant is not entitled
to instruct the jury that it may do so, and the undersigned
has no intention whatsoever of disregarding controlling and
extremely well-reasoned Tenth Circuit precedent.
Nahle's contention that the failure to instruct the jury
of its power of nullification violates his Sixth Amendment
right thus runs contrary to the established law of this
Circuit. Furthermore, while Defendant Nahle's motion
provides some useful overview about the historical role of
the jury (and cites to the opinion of U.S. District Judge
James O. Browning in United States v. Courtney, 960
F.Supp.2d 1152 (D.N.M. 2013)), Defendant does not present
this Court with contemporary authority to rule in favor of
his proposed instructions regarding jury nullification.
The Defendant Is Not Entitled to a Jury Instruction on
distinction between the jury's province of fact-finding
and the judge's role of sentencing ensures that jurors
only consider whether the facts before them support a finding
of guilt beyond a reasonable doubt of the crime charged.
Shannon v. United States, 512 U.S. 573, 579 (1994)
(“The jury's function is to find the facts and to
decide whether, on those facts, the defendant is guilty of
the crime charged.”). Sentencing information is,
therefore, irrelevant to the jury's function unless
Congress has indicated a statutory intent for the jury to
consider sentencing. E.g., United States v.
Parrish, 925 F.2d 1293, 1299 (10th Cir. 1991)
(“Unless a statute specifically requires jury
participation in determining punishment, the jury shall not
be informed of the possible penalties.”). The Tenth
Circuit has stated: “The authorities are unequivocal in
holding that presenting information to the jury about
possible sentencing is prejudicial . . . . Absent a statutory
requirement that the jury participate in the sentencing
decision, nothing is left ‘for jury determination
beyond the guilt or innocence of an accused.'”
United States v. Greer, 620 F.2d 1383, 1384-85 (10th
Cir. 1980) (citing Rogers v. United States, 422 U.S.
35, 40 (1975); Chapman v. United States, 443 F.2d
917, 920 (10th Cir. 1971)). Thus, “[i]t 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.'”
Shannon, 512 U.S. at 579 (citing Rogers,
422 U.S. at 40).
Nahle does not argue that the jury will be deprived of a
statutory duty to consider sentencing information. In view of
Defendant Nahle's charge of assault, the jury has no
sentencing role. As previously noted, Defendant's motion
does not provide authority releasing this Court from the
unambiguous precedent of the Tenth Circuit and the Supreme
Court of the United States. See also United States v.
Edwards, 266 F.Supp.3d 1290, 1322 (D.N.M. 2017)
(“These courts have been very clear about what a trial
court should do: the trial court is not to present any
information about possible sentencing unless the jury's
participation in sentencing is required.”).
Federal Rules of Evidence also compel the Court to deny
Defendant's request to present sentencing information for
the jury to consider at trial. First, the Federal Rules of
Evidence clearly contemplate that a jury is to be presented
with only relevant evidence. See Fed. R. Evid. 401.
Sentencing information is simply not relevant to the
jury's essential task of finding, based on the evidence
presented, whether the government has met its burden of
proving the Defendant guilty of the crime charged. See
Shannon, 512 U.S. at 579 (“Information regarding
the consequences of a verdict is therefore irrelevant to the
assuming relevancy, the Federal Rules of Evidence vest
discretion in the trial judge to exclude 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 .
. . .” Fed.R.Evid. 403. The United States Supreme Court
has held that the starting point for federal sentencing is
for the district judge to arrive at a correctly calculated
guideline sentence. Gall v. United States, 552 U.S.
38, 49 (2007) (“As a matter of administration and to
secure nationwide consistency, the Guidelines should be the
starting point and the initial benchmark.”). Thus, if
the Defendant was allowed to present sentencing information
to the jury, the door potentially would be opened for the
jury to hear information on the Sentencing Guidelines,
statutory minimum and maximum penalties, upward and downward
departures and/or variances, and the sentencing factors of 18
U.S.C. § 3553(a). This would be a truly daunting task
for a trial judge and one that the undersigned is not willing
to undertake. Introduction of such an array of sentencing
issues broaches significant risks of running afoul of Federal
Rule of Evidence 403. Indeed, the Tenth Circuit has ruled
that the possibility of a defendant's conviction
resulting in mandatory minimum penalties did not require the
jury to participate in sentencing decisions. See
Parrish, 925 F.2d at 1299. Thus, if there was ever a
reason for a trial judge to invoke Federal Rule of Evidence
403, it would be in the context of a defendant attempting to
present sentencing information to a jury.
above-stated reasons, the Court finds that Defendant
Nahle's Motion to Preserve Right to Jury Trial is not
supported by the current law of the Tenth Circuit, and the
Court rejects the proposed jury instructions attached as
IS ORDERED that Defendant Nahle's Motion to
Preserve Right to Jury Trial (Doc. 40) is
hereby DENIED for reasons ...