United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the following
motions: (1) the United States' Omnibus Motion in Limine
(ECF No. 82); (2) the United States' Motion for a
Lafler-Frye Hearing (ECF No. 84); (3)
Defendant's Omnibus Motions in Limine (ECF No.
85); (4) Defendant's Motion in Limine to
Prohibit Impeachment by Evidence of Criminal Conviction under
Rule 609 (ECF No. 86); (5) Defendant's Motion in
Limine to Exclude 404(b) Prior Bad Acts Evidence and
Demand for Notice of Intent under 404(b)(2) (ECF No. 87); and
(6) Opposed United States' Motion in Limine to
Prohibit Discussion of Sentencing or Punishment at Trial (ECF
No. 92). The Court, having considered the motions, briefs,
evidence, relevant law, and otherwise being fully advised,
rules as described herein.
January 29, 2019, a federal grand jury returned a Superseding
Indictment charging Defendant with two counts: aggravated
sexual abuse of a minor in violation of 18 U.S.C.
§§ 1153, 2241(c), 2246(2)(C), and 3559(e) (Count 1)
and aggravated sexual abuse of a minor in violation of 18
U.S.C. §§ 1153, 2241(c), 2246(2)(D), and 3559(e)
(Count 2). Count 1 charges Defendant with unlawfully and
knowingly engaging in and attempting to engage in a sexual
act with Jane Doe, a child who was between 12 and 16 years of
age, “by using force, and the sexual act consisted of
penetration, however slight, of the genital opening of Jane
Doe by a hand or finger of the defendant, with an intent to
abuse, humiliate, harass, degrade, arouse and gratify the
sexual desire of any person, and the defendant has a prior
sex conviction in which a minor was the victim.”
Superseding Indictment 1, ECF No. 99. In Court 2, the
Government alleges Defendant “unlawfully and knowingly
engaged in and attempted to engage in a sexual act with Jane
Doe, a child who had attained the age of twelve, but had not
attained the age of 16, by using force, and the sexual act
consisted of the intentional touching, not through the
clothing, of the genitalia of Jane Doe by the defendant, with
an intent to abuse, humiliate, harass, degrade, arouse and
gratify the sexual desire of any person, and the defendant
has a prior sex conviction in which a minor was the
victim.” Id. at 1-2, ECF No. 99.
Rule of Evidence 401 states that evidence is relevant if
“it has any tendency to make a fact more or less
probable than it would be without the evidence” and
“the fact is of consequence in determining the
action.” Fed.R.Evid. 401. A court may exclude relevant
evidence if its probative value is substantially outweighed
by a danger of unfair prejudice or confusion of the issues.
Fed.R.Evid. 403. Rule 404(b) prohibits the admission of
evidence of crimes, wrongs, or other acts to prove a
person's character to show action that conforms to that
character, but it allows evidence of other bad acts if
admissible for other purposes, such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. Fed.R.Evid. 404(b).
United States' Omnibus Motion in Limine (ECF No.
Government requests an order excluding the following
categories of evidence at trial: allegations of Government
misconduct or constitutional violations; the contents of
rulings or pretrial motions filed by the parties; plea
negotiations; offers to stipulate; information known only to
Defendant which could only be admitted through his sworn
testimony; administrative disciplinary findings to impeach a
witness; defense exhibits that have not been previously
disclosed to Government counsel; and evidence of
Defendant's health. Gov.' Mot. 1-3, ECF No. 82. In
response, Defendant concurs with the Government's request
to preclude evidence of pre-trial rulings, plea negotiations,
and defense exhibits. See Def.'s Resp. 2-3, ECF
No. 91. Defendant opposes the wholesale exclusion of the
other categories of evidence. See id.
allegations of Government misconduct, Defendant states he
does not intend to present any evidence regarding the
Court's finding that Special Agent Jennifer Sullivan
violated his constitutional right to remain silent after
invoking his Miranda rights. Id. at 1.
Similarly, he is unaware of evidence of administrative
disciplinary findings against any Government witnesses.
Id. Defendant requests the Court deny the request to
exclude evidence of governmental misconduct and
administrative disciplinary findings, because should he
become aware of such evidence, he should have an opportunity
to show its relevance. The Court will deny as moot and/or as
unripe the request to exclude evidence of governmental
misconduct and administrative discipline. Should any party
intend to present such evidence, the party should bring it to
the Court's attention prior to introducing it at trial.
objects to the request to exclude generally offers to
stipulate, noting that he has offered to stipulate to federal
jurisdiction, i.e., that he is an Indian and that the
location described by the complaining witness is in Indian
Country, but the parties have not yet reached an agreement on
the language of the stipulation. See Id. at 2. In a
separate brief, however, Defendant indicated that he will not
stipulate to jurisdiction. See Def.'s Resp. to
Mot. for Pre-trial Determination of Indian Country Land
Status 2, ECF No. 100. The Court will deny as moot and/or as
unripe the request to exclude evidence of stipulations.
Should any party intend to present such evidence, the party
should bring it to the Court's attention prior to
introducing it at trial.
respect to information known only to Defendant, Defendant
asserts he should be permitted to cross-examine the
government's witnesses, that information can have sources
through defense investigation, and that he intends to follow
the rules of evidence at trial. The Court will deny the
request to categorically exclude information known only to
Defendant as unripe. The Court can take up objections to
specific questions or evidence at trial.
Defendant objects to the exclusion of evidence of his mental
or physical health should it become relevant to the issue in
the case. The Court will deny the request to categorically
exclude information of Defendant's health as unripe. The
Court can take up objections to specific questions or
evidence at trial.
United States' Motion for Lafler-Frye Hearing
(ECF No. 84)
Government asks the Court to inquire prior to trial whether
defense counsel communicated its plea offers to Defendant
under Missouri v. Frye, 566 U.S. 134 (2012), and
Lafler v. Cooper, 566 U.S. 156 (2012). It points out
that at the December 3, 2018 plea hearing, Defendant rejected
the Government's plea agreement. The Government wishes to
make a record to preclude a future ineffective assistance of
counsel claim under ...