United States District Court, D. New Mexico
ORDER ON UNITED STATES' MOTION IN LIMINE TO
PRECLUDE EVIDENCE ABOUT QUALITY OF GOVERNMENT'S
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the
government's Motion In Limine to Preclude
Evidence about Quality of Government's Investigation.
Doc. 71. Defendant filed an untimely Response. Doc. 108. The
government then filed a Reply. Doc. 116. Having considered
the Motion, relevant law, and being otherwise fully informed,
the Court will RESERVE ruling on this issue
government seeks an order preventing Mr. Perrault from
questioning witnesses or otherwise offering any evidence at
trial about the quality of the government's
investigation. Doc. 71. It states that such evidence is
“irrelevant under Fed.R.Evid. 401, would confuse the
issues and mislead the jury under Fed.R.Evid. 403, and
violates the generally [sic] prohibition on such
evidence set forth in United States v. McVeigh, 153
F.3d 1166, 1192 (10th Cir. 1992).” Id. at 1.
The government states that “a defendant is not allowed
to engage in unfounded speculation that the government's
investigation was ‘shoddy' or
‘slanted.'” Id. at 2 (citing
McVeigh, 153 F.3d at 1192).
Perrault responded that the government's assumptions
regarding defense strategy should not be considered in making
the Court's ruling. Doc. 108 at 1. While he did not
dispute the Court's ruling in McVeigh, Mr.
Perrault asserted that he should be allowed to ask questions
of government witness's regarding their investigation,
and the government should also be free to argue that the
investigation was “diligent and objective.”
Id. Mr. Perrault also noted that the government
could present evidence and argument regarding the reliability
of the evidence, or object to any questions raised on
cross-examination. Id. at 1-2.
government then replied that Mr. Perrault ignores the legal
authority provided in McVeigh and Veal.
Doc. 116 at 1-2. It also stated that Mr. Perrault did
“not provide the Court with any reasons why evidence
about the quality of the government's investigation is
relevant to the material issues of the case or why such
evidence would not confuse or mislead the jury by diverting
the factfinder's attention from the question of whether
Defendant committed the crimes charged in the
indictment.” Id. at 2.
United States v. McVeigh, the Tenth Circuit held
that generally, “the facts surrounding the
government's investigation may become relevant”
only when they would affect the reliability of a particular
piece of evidence. 153 F.3d at 1192. The Tenth Circuit
further held that the defendant had failed to establish the
proper nexus between the evidence he sought to introduce, and
the quality of the government's investigation.
Id. at 1191-92. However, this finding should not be
taken to suggest that questioning the integrity of the
government's investigation would never be proper.
quality or bias of the government's investigation that
produces the evidence that is submitted to the jury may
affect the reliability of the evidence, and would therefore
be relevant information. See United States v. Sager,
227 F.3d 1138, 1145 (9th Cir. 2000) (citing Kyles v.
Whitley, 413 U.S. 419, 446 (1995)); see also
Lowenfield v. Phelps, 817 F.2d 285, 291-92 (5th Cir.
1987) (finding defense's strategy to argue that
“sloppy police work reflected adversely on the
state's entire case” was reasonable), aff'd
on other grounds, 484 U.S. 231 (1988). It may bear on
the quality of the government's witnesses and,
“perhaps more importantly, the weight to be given to
evidence produced by [the] investigation.”
Sager, 227 F.3d at 1145. Evidence that testifying
agents may have engaged in misconduct may also be admissible
to show motive or bias. United States v. Wilson, 605
F.3d 986, 1006-07 (D.C. Cir. 2010). But, as was the case in
McVeigh, a court must limit such inquiries when they
are based on mere speculation.
Court is required to determine the relevancy of the evidence
pursuant to Rule 401 of the Federal Rules of Evidence, and to
ensure that the danger of confusing the issues or misleading
the jury do not substantially outweigh the probative value of
the evidence pursuant to Rule 403. Fed.R.Evid. 401; Fed R.
Evid. 403; see also United States v. Veal, 23 F.3d
985, 989 (6th Cir. 1994) (excluding evidence regarding the
government's investigation as “irrelevant”
and noting that the “exclusion of evidence on the
grounds of relevancy is within the discretion of the trial
court.”) (quoting United States v. McLaurin v.
Fischer, 768 F.2d 98, 104 (6th Cir. 1985)).
the government could have done more will not necessarily shed
light on whether sufficient evidence has been adduced to
establish a defendant's guilt or innocence. United
States v. Mirabal, 2015 WL 1350551, 13-CR-1152 WJ
(D.N.M. Nov. 24, 2015). The introduction of evidence should
not be based on speculation, create unfair prejudice, nor
serve to confuse or mislead the jury. Id. It is not
sufficient, for example, “for a defendant merely to
offer up unsupported speculation that another person may have
done the crime.” United States v. Meisel, 875
F.3d 983, 991 (10th Cir. 2017) (citing McVeigh, 153
F.3d at 1191). However, such evidence is admissible
if a defendant's “proffered evidence …, on
its own or in combination with other evidence in the record,
… show[s] a nexus between the crime charged and the
asserted” theory. Id. at 1002.
such evidence has been allowed in cases to generally cast
doubt on the government's case. In these cases, the Tenth
Circuit has affirmed the trial court's limiting
instruction regarding the extent to which the jury could
consider evidence questioning the government's
investigation. See United States v. Jenks, 714
Fed.Appx. 894 (10th Cir. 2017). See also United States v.
Lemon, 714 Fed.Appx. 851 (10th Cir. 2017) (unpublished);
United States v. Johnson, 479 Fed.Appx. 811 (10th
Cir. 2012) (unpublished).
time, the Court cannot ascertain how the defense will respond
to the government's case. If the defense intends to
introduce evidence regarding the quality of the
government's investigation, such evidence must point to a
specific failure of the government investigation that is
tethered to a relevant issue. Any evidence on this topic
introduced by the defense must be relevant in that it brings
into question the reliability of a specific piece of evidence
procured through the government's investigation. See
McVeigh, 153 F.3d at 1192. Furthermore, if defense sets
forth any ...