United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Mr. Vigil's Motion to
Instruct Jury as to Mandatory Minimum Penalties. Doc. 85. The
government timely responded. Doc. 103. The Court heard
arguments on these motions on July 29, 2019. However, counsel
indicated that they had nothing to add on this motion, and
the parties rested on their briefs. Having reviewed the
briefs, relevant law, and being otherwise fully informed, the
Court finds that the motion is not well-taken and will be
Vigil requests that “the Court instruct the jury as to
the mandatory minimum penalty that Mr. Vigil faces for a
conviction under 18 U.S.C. section 924(c).” Doc. 85 at
1. He is charged in a two-count Indictment with Aggravated
Sexual Abuse, and faces a mandatory penalty of thirty years
Vigil acknowledges that the Tenth Circuit and Supreme Court
precedent do not allow a jury to be instructed, or otherwise
advised, of the consequences of the verdict. Id. at
3. However, he argues that the precedent should be
re-evaluated in light of “the Supreme Court's
recent Sixth Amendment jurisprudence.” Id. Mr.
Vigil goes on state that “Booker and
Apprendi stand for the proposition that a court may
not ‘make factual findings that would enhance a
sentence that must be imposed if that practice would infringe
upon the Sixth Amendment right to a jury trial.'”
Id. at 4 (citing United States v. Polizzi,
549 F.Supp.2d 308, 427 (E.D.N.Y. 2008)). These cases,
combined with Justice Scalia's comments in Blakely v.
Washington, 542 U.S. 296, 305-06 (2004), he argues,
suggest a “return to an originalist view of the Sixth
Amendment, the Constitution, and the jury's role in our
constitutional framework.” Doc. 85 at 4-5. Mr.
Vigil's arguments thus appear to request that the role of
juries should be re-evaluated, as should whether they should
be instructed as to the possible penalties. Id. at
Vigil goes on to discuss the history of the Sixth Amendment
and the role of the jury. He states that the “jury
today is far weaker, less robust, and more constrained”
than what was recognized by the founders. Id. at 8.
Defense believes that the change was largely due to the
specialization of the legal profession, resulting in the
diminishing role of the jury. Id. at 9. Citing
Polizzi, Mr. Vigil argues that recent Supreme Court
cases “‘emphatically reaffirm three propositions
that support the argument that juries can be' informed of
the consequences of a guilty verdict.” Id. at
10. He concludes, “[t]o deprive the jury of this
function is to rob our criminal justice system of the
mitigating, humanizing, and democratic role the founders
intended the jury to play in the constitutional structure of
the republic.” Id. at 11-12 (citing Rachel E.
Barkow, Recharging the Jury: The Criminal Jury's
Constitutional Role in an Era of Mandatory Sentencing,
152 U. Pa. L. Rev. 33, 78 (2003)). The Court notes that this
law review article was written prior to Booker.
government opposes the motion and requests that the Court
enter an order prohibiting Mr. Vigil from discussing the
advisory sentencing guideline range, that Mr. Vigil faces a
thirty-year mandatory minimum, or that Mr. Vigil, if
convicted, will be required to register as a sex offender.
Doc. 103 at 1. In its response, the government cites several
Tenth Circuit cases that support the bright line rule that
juries shall not be informed of the possible penalties.
Id. at ¶ 3. Allowing the jury to consider the
penalty “is an invitation for jury
nullification.” Id. at ¶ 4. The
government goes on to cite cases from numerous other circuits
holding the same. Id. at ¶ 5. In its review of
case law, the government cites several cases-from this
district and others- specifically post-dating the cases cited
by Mr. Vigil (Booker, Apprendi,
Blakely, and Crawford), in support of the
government's position that a defendant does not have a
Sixth Amendment right to instruct the jury on mandatory
minimum penalties. See Id. at ¶ 8. Several
Tenth Circuit Pattern Jury Instructions also affirm that the
jury should not consider the possible penalty in reaching its
verdict. Id. at ¶ 9.
the role of the jury has changed substantially since the
inception of the concept of juries and formation of the
criminal justice system. This Court has reviewed many
scholarly articles on this point, many of which have been
spearheaded by Nancy Gertner, a former United States District
Judge of the United States District for the District of
Massachusetts who is now a professor at Harvard Law School.
Such articles have posited, for example, that the role of
colonial jurors has changed largely owing to the change in
the “division of labor” in a criminal trial.
See, e.g., Nancy Gertner, A Short History of
American Sentencing: Too Little Law, Too Much Law, or Just
Right, 100 J. Crim. L. & Criminology 691 (2010).
while this change may call for a reevaluation of the role of
our jurors, caselaw postdating Booker,
Apprendi, and other important sentencing decisions
is clear: juries shall not be informed of the possible
penalties. As Mr. Vigil acknowledges, our Tenth Circuit
caselaw and Tenth Circuit Pattern Jury Instructions support
IS THEREFORE ORDERED that Mr. Vigil's Motion to
Instruct Jury as to Mandatory ...