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United States v. Boutte

United States District Court, D. New Mexico

September 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MILTON BOUTTE, JOE DIAZ, ARTURO VARGAS, and GEORGE LOWE, Defendants.

         ORDER CONSTRUING THE UNITED STATES' RESPONSE TO DEFENDANT BOUTTE'S NOTICE OF PUBLIC AUTHORITY AFFIRMATIVE DEFENSE AS A MOTION IN LIMINE TO EXCLUDE THAT DEFENSE AND DENYING THE UNITED STATES' MOTION IN LIMINE TO EXCLUDE DEFENDANT'S PUBLIC AUTHORITY DEFENSE WITHOUT PREJUDICE; GRANTING THE GOVERNMENT'S MOTIONS IN LIMINE; GRANTING IN PART AND DENYING IN PART DEFENDANT BOUTTE'S MOTION IN LIMINE; AND GRANTING IN PART AND DENYING IN PART THE UNITED STATES' MOTION TO INTRODUCE CRIMES, WRONGS, AND OTHER ACTS

          Joel M. Carson III United States Circuit Judge.

         The parties in the above-styled criminal action have filed several pretrial motions. After careful consideration, the Court disposes of the pretrial motions as follows: (1) the Court CONSTRUES the government's response to Defendant Boutte's Notice of Public Authority Affirmative Defense (Doc. No. 167) as a Motion in Limine to exclude that defense and DENIES WITHOUT PREJUDICE that Motion in Limine; (2) the Court GRANTS the government's Motions in Limine (Doc. No. 166); (3) the Court GRANTS IN PART and DENIES IN PART Defendant Boutte's Motion in Limine to preclude both admission of uncharged allegations under Rules 403 or 404(b) and co-conspirator statements not disclosed in James Notice (Doc. No. 160); and (4) the Court GRANTS IN PART and DENIES IN PART the government's motion to introduce crimes, wrongs, and other acts admissible under Rule of Evidence 404(b) (Doc. No. 170).

         I.

         On May 20, 2019, Defendant Milton Boutte filed a Notice of Public Authority Affirmative Defense (Doc. No. 155). The government filed a response to the notice (Doc. No. 167), denying that Defendant exercised actual or apparent public authority in connection with the criminal offenses charged in the Indictment and requesting that Defendant be barred from advancing the public authority defense at trial. Defendant filed a reply. The Court construes the government's request that Defendant be barred from advancing the public authority defense at trial as a motion in limine. For the reasons set forth below, the Court denies the government's motion without prejudice.

         Federal Rule of Criminal Procedure 12.3 provides that a defendant must give notice to the government if he intends to assert a public authority defense. That notice must contain the following information: (1) the law enforcement agency or federal intelligence agency involved; (2) the agency member on whose behalf the defendant claims to have acted; and (3) the time during which the defendant claims to have acted with public authority. Fed. R. Crim. P 12.3(a)(2). In his briefing, Defendant asserts both the public authority defense and entrapment by estoppel. “The public authority defense requires a defendant to show that he was engaged by a government official to participate in a covert activity.” United States v. Apperson, 441 F.3d 1162, 1204 (10th Cir. 2006). “The defense of entrapment by estoppel is implicated where an agent of the government affirmatively misleads a party as to the state of the law and that party proceeds to act on the misrepresentation so that criminal prosecution of the actor implicates due process concerns under the Fifth and Fourteenth amendments.” Id. Accordingly, the following must be present: (1) an active misleading by a government agent; (2) actual reliance by the defendant which is reasonable in light of the identity of the agent; (3) the point of law misrepresented; and (4) the substance of the misrepresentation. Id. at 1204-05. In addition, the government agent must be responsible for interpreting, administering, or enforcing the law defining the offense. Id. at 1205.

         The government argues that Defendant failed to comply with Federal Rule of Criminal Procedure 12.3. Specifically, the government contends Defendant failed to identify the criminal activities that he purportedly believed he had authority to commit and failed to identify the government agency from which his purported authority was derived or any official who allegedly authorized Defendant's misconduct. The government additionally argues that Defendant's purported authority was not derived from a law enforcement agency or intelligence agency. Finally, the government contends Defendant's entrapment by estoppel claim must fail because Defendant has failed to identify a government agent that actively misled him about the state of the law.

         The Court acknowledges that Defendant's notice provides little detail of the proposed defense. In his notice, Defendant states that he intends to offer a defense of public authority; that the authority came from various actors on behalf of various agencies, both known and unknown; that the agencies involved are the Department of Defense, the Department of the Army, the Department of Interior, and the Small Business Administration; that he acted on behalf of 18 identified agency members; and that the time during which he claims to have acted with public authority is the period leading up to and covered by the contracts at issue in the indictment. Defendant has complied with the Federal Rule of Criminal Procedure 12.3's notice provision. The Court notes that Federal Rule of Criminal Procedure 12.3 provides a discovery process for the government to request that Defendant disclose the address and telephone number of each witness it intends to rely on to establish a public authority defense. Fed. R. Crim. P. 12.3(a)(4). If a party fails to comply with the discovery provisions, the Court may exclude the testimony of any undisclosed witnesses regarding the public authority defense. Fed. R. Crim. P. 12.3(c).

         The Court has considered the government's motion and concludes that such a determination at this stage in Defendant's prosecution would be premature. The Court must hear the evidence at trial in order to evaluate whether the facts in this case warrant a public authority defense. At that point, the Court will determine whether Defendant is entitled to a jury instruction on the public authority defense. Accordingly, although Defendant may pursue his public authority defense at trial, the parties are directed to refrain from any express mention of the public authority defense in opening statements.

         To be clear, this decision does not establish that Defendant has a public authority defense or that such a defense is even relevant to this case. Instead, the Court simply is withholding a ruling until the parties present sufficient evidence to support a ruling on the issue. Accordingly, the Court DENIES WITHOUT PREJUDICE the government's motion in limine to exclude Defendant's public authority defense (Doc. No. 167).

         II.

         On June 3, 2019, the government filed motions in limine (Doc. No. 166). Specifically, the Government seeks to: (1) exclude reference to potential punishment in this case; (2) prohibit defense counsel from making autobiographical references to the jury; and (3) exclude evidence of Defendants' good conduct. Both Defendant Boutte and Defendant Lowe filed a response. Defendant Lowe does not oppose the first or third motion. Defendant Lowe further does not oppose request two as long as the Court mutually applies it. Defendant Boutte does not oppose the first or second motion as long as the Court mutually applies them. Defendant Boutte does, however, oppose the third motion. The Court GRANTS the government's motion to exclude reference to potential punishment in this case and GRANTS the government's motion to prohibit defense counsel from making autobiographical references to the jury. The Court grants these motions with the understanding that the government is also prohibited from referencing potential punishment in this case and making autobiographical references to the jury.

         As to the government's third motion-excluding evidence of Defendants' good conduct- the government seeks to exclude Defendant's specific instances of good conduct, including evidence of awards, commendations, or recognition he has received during his career in the military or otherwise. The government asserts that such evidence is inadmissible under Federal Rule of Evidence (“Rule”) 404(a)(1) because the evidence does not relate to a character trait that is pertinent, or relevant to, the criminal charges in the case. And even if the evidence related to a pertinent trait, the government argues evidence of the defendant's specific acts of good conduct would still be inadmissible under Federal Rule of Evidence 405(a), which governs the form of character evidence and allows evidence only as to the reputation of the defendant or as to a witness's opinion of the defendant's pertinent character trait.

         Defendant Boutte opposes the motion because he contends the Federal Rules of Evidence define the bounds of character evidence. Specifically, he argues that Federal Rule of Evidence 405 allows parties to use certain specific instances of character and traits as evidence and a blanket prohibition on all specific instances of good conduct would be improper. He contends that specific instances of a ...


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