United States v. Aguilar

Full title: UNITED STATES OF AMERICA, Plaintiff, v. KYLE AGUILAR, Defendant.

Court: United States District Court, District of New Mexico

Date published: Aug 30, 2024

CR 21-0670 JB (D.N.M. Aug. 30, 2024)

Opinion

CR 21-0670 JB

08-30-2024

UNITED STATES OF AMERICA, Plaintiff, v. KYLE AGUILAR, Defendant.

Counsel: Alexander M.M. Uballez United States Attorney Nicholas James Marshall Mia Ulibarri-Rubin Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff Carter B. Harrison, IV Nicholas Thomas Hart Harrison & Hart, LLC Albuquerque, New Mexico Attorneys for the Defendant

Counsel: Alexander M.M. Uballez United States Attorney Nicholas James Marshall Mia Ulibarri-Rubin Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

Carter B. Harrison, IV Nicholas Thomas Hart Harrison & Hart, LLC Albuquerque, New Mexico Attorneys for the Defendant

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) the United States' Opposed Motion in Limine to Preclude Discussion of Information Known Only to Defendant in Front of the Jury, filed December 18, 2023 (Doc. 139)(“Hearsay Motion”); (ii) the United States' Opposed Omnibus Motion in Limine, filed December 18, 2023 (Doc. 141)(“Omnibus Motion”); (iii) the United States' Opposed Motion In Limine to Prohibit Discussion of Sentencing or Punishment at Trial, filed December 18, 2023 (Doc. 142)(italics in original)(“Discussion of Punishment Motion”); (iv) the United States' Opposed Motion in Limine to Include Statements by Defendant, filed December 18, 2023 (Doc. 143)(“Statements Motion”); (v) the United States' Sealed Opposed Motion in Limine to Permit Testimony Regarding Victim's Statements Pursuant to Fed.R.Evid. 803(4), filed December 18, 2023 (Doc. 145)(“Rule 803(4) Motion”); (vi) the United States' Sealed Motion In Limine to Preclude Improper Evidence, filed December 18, 2023 (Doc. 150)(italics in original)(“Sexual History Motion”); and (vii) Defendant's Motion in Limine to Exclude Use of Plea Statements as Substantive Evidence or Impeachment, filed December 19, 2023 (Doc. 152)(“Plea Statements Motion”). The Court held a hearing to consider these motions January 11, 2024. See Clerk's Minutes, filed January 11, 2024 (Doc. 174). The primary issues are: (i) whether the Court should prohibit Defendant Kyle Aguilar, and any defense witnesses, from asking questions or introducing evidence regarding information known only to Aguilar, unless Aguilar chooses to testify; (ii) whether the Court should prohibit improper statements regarding the Plaintiff United States of America's burden of proof, such as misstatements about the meaning of “guilt beyond a reasonable doubt”; (iii) whether the Court should preclude statements about pre-trial rulings and/or plea negotiations in the jury's presence; (iv) whether the Court should exclude any discussion of the alleged victim Jane Doe's prior bad acts, such as evidence of Doe's past alcohol or drug use, whether during voir dire or during trial; (v) whether the Court should prohibit Aguilar from discussing his possible punishment at trial; (vi) whether the Court should allow the United States to introduce Aguilar's prior statements made to law enforcement pursuant to rule 801(d)(2) of the Federal Rules of Evidence; (vii) whether the Court should allow Dr. Eric Unzicker, a physician who performed a medical examination on Doe, to testify as to statements made to him by Doe under Federal Rule of Evidence 803(4); (viii) whether the Court should prohibit Aguilar from introducing any evidence related to Doe's sexual history or prior allegations of sexual abuse, pursuant to rules 401, 403, and 412 of the Federal Rules of Evidence; and (ix) whether the Court should prohibit the United States from introducing evidence related to Aguilar's now-rejected plea agreement. After considering carefully the parties' arguments, the parties' briefing, and the relevant legal authorities, the Court concludes -- for the reasons stated on the record at the hearing and elaborated below -- that: (i) if Aguilar chooses not to testify, and the only good-faith basis for a question is Aguilar's personal knowledge, the parties will approach the bench and the Court will determine if the question is proper before it is asked, see Draft Transcript of January 11, 2024, Hearing at 9:8-10:25 (taken January 11, 2024)(Court, Hart, Marshall)(“Tr”)¹; (ii) the Court prohibits improper statements regarding the United States' burden of proof, such as misstatements about the meaning of “guilt beyond a reasonable doubt,” see Tr. at 3:3-12 (Court, Hart, Marshall); (iii) the Court precludes statements about pre-trial rulings and/or plea negotiations in the presence of the jury, see Tr. at 3:12-17 (Court, Hart); (iv) the Court does not exclude all evidence of Doe's alleged prior drug and alcohol use, but orders the parties to approach the bench if Aguilar seeks to question Doe about these subjects, see Tr. at 8:11-24 (Court); (v) although the Court is very sympathetic to Aguilar's position on this issue, precedent of the Supreme Court of the United States and the United States Court of Appeals for the Tenth Circuit binds the Court, and therefore the Court prohibits discussion of punishment or sentencing at trial, see Tr. at 11:19-12:6 (Court); (vi) the Court will allow the United States, pursuant to rule 801(d)(2) of the Federal Rules of Evidence, to introduce statements that Aguilar made to Frank Chavez, a Special Agent with the Bureau of Indian Affairs (“BIA”), on February 17, 2017, see Tr. at 15:22-24 (Court), but the Court will not allow any statements that relate in any way to Aguilar's October 12, 2017, alleged refusal to take a polygraph test, as those statements bear on his right against self-incrimination, as the Fifth Amendment to the Constitution to the United States guarantees, see Tr. at 18:18-19:4 (Court); (vii) pursuant to rule 803(4)'s exception to the rule against hearsay, the Court allows Dr. Unzicker to testify as to statements that Doe made to him, see Tr. at 29:24-30:8 (Court); (viii) the Court prohibits, pursuant to rule 412, any evidence offered to prove that Doe engaged in other sexual behavior or has a sexual predisposition, but allows evidence related to Doe “being out all night” the evening before the sexual abuse reporting that led to Aguilar's prosecution, Tr. at 52:25-53:1 (Marshall); see id. at 45:8-54:7 (Court, Hart, Marshall); and (ix) pursuant to rule 410 of the Federal Rules of Evidence, the Court will not allow the United States to use evidence related to Aguilar's now-rejected plea agreement for any purpose, whether in its case-in-chief or as impeachment evidence, see Tr. at 57:23-58:15 (Court).

1 The Court's citations to the transcript of the hearing refer to the court reporter's original, unedited version. Any final transcripts may contain slightly different page and/or line numbers.

FACTUAL BACKGROUND

As originally indicted, a Grand Jury charged Aguilar with two counts of child sex offenses in violation of 18 U.S.C. §§ 1153, 2244(a)(5), and 2246(3). See Indictment at 1-2, filed May 12, 2021 (Doc. 2). Aguilar initially pleaded guilty to the Indictment's charges on November 16, 2022, in a hearing before the Honorable Laura Fashing, United States Magistrate Judge for the United States District Court for the District of New Mexico. See Plea Minute Sheet, filed November 16, 2022 (Doc. 64). The Court later rejected Aguilar's plea agreement with the United States, however, because Aguilar did not admit to having used force in making sexual contact with the minor victim, an element that the Abusive Sexual Contact of a Minor charge in the Indictment requires under 18 U.S.C. § 2244(a)(5). See Draft Transcript of May 19, 2023, Hearing at 3:13-14 (taken May 19, 2023)(Court)(“I'm rejecting his plea, and the plea agreement”). Cf. Memorandum Opinion and Order at 37-47, filed March 29, 2023 (Doc. 99)(“Objections MOO”)(concluding that, for Guidelines purposes, there is insufficient evidence that Aguilar used force, threats, fear, or intimidation in committing his crime). The Grand Jury then superseded its initial Indictment, and charges Aguilar with three counts: one count under 18 U.S.C. §§ 1153, 2244(a)(5), 2246(3), and two counts under 18 U.S.C. §§ 1153, 2244(a)(3), 2246(3). See Superseding Indictment at 1-2, filed October 4, 2023 (Doc. 126)(“Superseding Indictment”).

PROCEDURAL BACKGROUND

In this Memorandum Opinion and Order, the Court considers several motions in limine. In the Hearsay Motion, the United States asks the Court to enter an order “prohibiting Defendant Kyle Aguilar, his counsel, and/or any defense witnesses from asking any question, introducing any evidence, or making any statement or argument, directly or indirectly, regarding information known only to Defendant in front of the jury.” Hearsay Motion at 1. The motion is pro forma and contains no information specific to Aguilar's case. At the hearing, the Court noted that the Hearsay Motion is a “standard MIL that the Government files” and notes that, “I've always thought the wording is a little unusual.” Tr. at 9:7:8 (Court). Aguilar stated that he “do[es]n't really understand this motion.” Tr. at 10:13 (Hart). The United States asserted that the motion states that if the “only independent source” of information for questioning is the “defendant's knowledge,” then that questioning would be hearsay unless Aguilar testifies. Tr. at 10:5-8 (Marshall). The Court and the parties agreed that, if Aguilar chooses not to testify, and the only good-faith basis for a question is Aguilar's personal knowledge, the parties will approach the bench, and the Court will determine if the question is proper -- i.e., that “you're not testifying for him if he's not going to take the stand.” Tr. at 10:23-24 (Court). See Tr at 9:8-10:25 (Court, Hart, Marshall).

In the Omnibus Motion, the United States makes three requests: that the Court: (i) “prohibit improper statements of the United States' burden of proof”; (ii) “preclude statements about pretrial rulings and/or plea negotiations in the presence of the jury”; and (iii) “exclude [the] victim's prior bad acts.” Omnibus Motion at 1. The Omnibus Motion is also largely pro forma, but the United States argues -- related to the prior bad acts discussion -- that the Court exclude “[a]ny discussion of Jane Doe's alcohol or potential drug use.” Omnibus Motion at 5. Although Aguilar does not contest the United States' first two requests in the Omnibus Motion, see Defendant's Response in Partial Opposition to United States' Omnibus Motion in Limine at 1, filed January 8, 2024 (Doc. 163)(“Omnibus Response”), as to the third, Aguilar responds that “[t]he Government . . . does not specifically identify prior violent acts, alcohol abuse, or drug use that it seeks to exclude,” and “[t]he failure to identify specific evidence that it seeks to exclude requires that the motion be denied,” Omnibus Response at 2 (citing United States v. Begay, 497 F.Supp.3d 1025, 1089 (D.N.M. 2020)(Browning, J.)). Aguilar also contends that “[i]mpeachment of a witness that abuses alcohol is permissible if the alcohol use bears on impairment of memory or perception during the time at issue,” and that the “same is true for the Government's request related to drug abuse.” Omnibus Response at 2-3. At the hearing, regarding the point of dispute, the Court stated: “I guess I'm reluctant to bar the defendant from in any way referencing the . . . alleged victim's, alcohol [and] potential drug use. I think Mr. Hart has a good suggestion that if they're going to go into it, approach the bench, and let's see where we are.” Tr at 8:8-13 (Court). Some evidence of Doe's past alcohol and drug use, the Court stated, might “go to credibility and impeachment of the witness.” Tr at 8:23-24 (Court).

In the Discussion of Punishment Motion, the United States “requests this Court enter an order prohibiting defense counsel from mentioning to the jury, on direct or cross-examination or in argument,” any of the punishment or sentencing ramifications of his case. Discussion of Punishment Motion at 1. In response, Aguilar “recognizes that both the Tenth Circuit and Supreme Court of the United States have issued opinions foreclosing the introduction of evidence of potential penalties,” but states that sound originalist analysis “calls into doubt these cases.” Defendant's Response in Opposition to the Government's Motion in Limine to Exclude References to Punishment or Sentencing During Trial at 1-2, filed January 8, 2024 (Doc. 164)(“Discussion of Punishment Response”). At the hearing, the Court stated that it is “very, very sympathetic to the position of the defendants” on this question, that it has written extensively on this topic, and thinks the “case law from the Supreme Court and Tenth Circuit is wrong.” Tr at 11:20-25 (Court). Nevertheless, the contrary case law binds the Court, and thus the Court has “no choice” but to grant the Discussion of Punishment Motion. Tr at 12:2-6 (Court).

In the Statements Motion, the United States “requests that the Court allow the United States to present testimony about what Defendant told another witness and to BIA Agent Frank Chavez as a statement by a party opponent,” and “respectfully requests that this Court issue a pretrial ruling on the admissibility of the evidence described in this notice.” Statements Motion at 1. The Statements Motion does not “describe[]” the statements with any specificity, asserting only that the “Defendant's statements to Agent Frank Chavez and to other witnesses are admissible if offered by the United States in the trial against him.” Statements Motion at 2. Aguilar, in response, focuses only on Aguilar's February 17, 2017, statement to Chavez, because that is the only statement which Aguilar has received. See Defendant's Response in Opposition to the Government's Opposed Motion in Limine to include Statements by Defendant at 1 n.1, filed January 8, 2024 (Doc. 166)(“Statements Response”). With respect to this statement, Aguilar agrees that his statements to Chavez are not hearsay, but contends that the United States “does not identify which if any portions of this statement it seeks to admit,” and therefore does not prove that these statements are relevant or pass the rule 403 balancing test. Statements Response at 3. See Fed.R.Evid. 403 (“The court may exclude relevant 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, or needlessly presenting cumulative evidence.”). At the hearing, the United States confirmed that it seeks to admit two different statements to law enforcement: (i) Aguilar's February 17, 2017, statement to Chavez; and (ii) Aguilar's October 12, 2017, statement on a day in which “[h]e initially agreed to do a polygraph examination with the FBI examiner,” but did not end up taking the examination. Tr at 13:22-23 (Marshall). The United States acknowledged that, regarding the statements related to the polygraph examination, it will have to “tread lightly” and “have to kind of craft it so we might exclud[e] the discussion of the polygraph examination.” Tr at 13:16-14:5 (Marshall). Aguilar agreed at the hearing that the whole February 17, 2017, statement to Chavez is admissible. See Tr. at 15:17-24 (Court, Hart). As to the second statement, however, Aguilar contended that this moment was the “first time” he had heard of the statements related to the polygraph examination, Tr. at 15:1 (Hart), and argued broadly that, to the extent that these statements concern Aguilar's refusal to speak to law enforcement, they are an “improper[] comment on his silence,” Tr. at 16:1120 (Hart). In short, Aguilar argued that, while perhaps some of the conversation before the polygraph may be admissible, “the fact that he was there to take a polygraph and then refused to take it is not admissible against him, because that is an invocation of the right to silence.” Tr. at 17:6-10 (Hart). The Court agreed with Aguilar, stating that it would “cut . . . off” the testimony when it reached any discussion of the polygraph examination:

I don't want any mention of polygraph. I don't think that helps anything. That's just going to stir up the jury as to - once we throw that word out there, they're going to go: What was the result? So I think keep the word polygraph out. Coach your witnesses. You lead them through there -- if there are any pitfalls -- so the word doesn't come out, and stop the story right where he declines to take the polygraph.

Tr. at 18:21-19:4 (Court).

The Rule 803(4) Motion asks the Court for a ruling admitting “testimony from Eric Unzicker, M.D., a physician with Indian Health Services, regarding statements Jane Doe made to this medical provider during his medical examination of Jane Doe regarding the subject sexual abuse committed by the Defendant.” Rule 803(4) Motion at 1. Specifically, the United States seeks to admit the following statement from Dr. Unzicker's report:

When queried further about any inappropriate touch, she affirmed that s/o at home has touched her and eventually stated this was one of her uncle Jonathan's brothers who lives in the home and named the individual. Said this has happened more than one time, but happened for the first time with the past few weeks. Described this person as coming home intoxicated then getting in to [sic] bed w/ her and touching her inappropriately.

Rule 803(4) Motion at 2 (quoting Pueblo of San Felipe, Health Clinic Report at 2 (dated February 12, 2017), filed December 18, 2023 (Doc. 145-1)). In response, Aguilar agrees that all but the final sentence of this statement may come in under rule 803(4)'s exception to the rule against hearsay as a statement made for medical diagnosis or treatment. See Defendant's Response in Opposition to The Government's Motion In Limine to Permit Testimony Regarding Victim's Statements Pursuant to Fed.R.Evid. 803(4) at 1, filed January 8, 2024 (Doc. 162)(“Rule 803(4) Response”). Aguilar argues, however, that the final sentence contains references -- to Aguilar's alleged intoxication -- that “are not necessary or even rationally related to [Doe]'s medical treatment,” and thus the Court should exclude that sentence. Rule 803(4) Response at 1. At the hearing, the Court disagreed with Aguilar's contention on this score, stating: “I think there is enough tie to modern medical examinations where they talk to you about safety in the home. But that statement is relevant to medical care.” Tr. at 30:4-7 (Court). The Court therefore grants the Rule 803(4) Motion.

In the Sexual History Motion, the United States requests that the Court “issue an order prohibiting Defendant from introducing any evidence related to the victim's, Jane Doe's, sexual history or any prior allegations of sexual abuse in this case, in violation of Federal Rules of Evidence 401, 403, and 412.” Sexual History Motion at 1. Specifically, the United States seeks an order prohibiting Aguilar from introducing evidence or cross-examining Doe about: “1) any sexual abuse disclosed by Jane Doe regarding a juvenile male, prior to this instant case; [and] 2) any reference to any other sexual and/or romantic relationship Jane Doe has been involved in prior to and since the incidents in this case.” Sexual History Motion at 2-3. The United States argues that such an order is appropriate under rule 412 of the Federal Rules of Evidence, which limits the use of evidence of sexual history, behavior, reputation, or proclivity. See Sexual History Motion 4-5; Fed.R.Evid. 412(a). In addition, the United States argues that such evidence is not relevant and the Court should exclude the evidence under rule 403 balancing. See Sexual History Motion 3-4. Aguilar responds that such an order would be “overbroad,” and, although he does not seek to present “evidence of the fact of the prior sexual assault or prior sexual activity,” he seeks to present facts “related” to the prior sexual assault that have “probative value on this proceeding.” Defendant's Response In Opposition to Government's Motion In Limine to Preclude Improper Evidence at 2, filed January 8, 2024 (Doc. 165)(“Sexual History Response”). At the hearing, Aguilar specified that he seeks to introduce evidence that, on a previous evening -- some time before the reporting that led to Aguilar's prosecution -- Doe was “gone from the home without permission for a long period of time,” and then, when she came home the next morning, “[s]he gets in serious trouble for it.” Tr. at 45:16-46:6 (Hart). Aguilar contends that he will use this evidence -- which tangentially relates to prior sexual activity² -- to argue that Doe fabricated her story about the sexual abuse in the incident in question because she wanted to avoid getting in trouble for once again being out all night. See Tr. at 47:6-18 (Hart)(explaining that, “[b]asically, the similarities between the two is that she's away from the home, without permission, for a long time,” and because she got in trouble the first time, “that bears on why she would lie” about what happened on the second occasion). The United States agreed with this approach, stating: “[I]f what defense is trying to do is . . . say[] that she fabricated this event because she got caught being out late at night, I think that [is]n't preclude[d by] . . . the rape shield law,” and “it could be a path for impeachment.” Tr. at 52:11-16 (Hart). The Court concluded that “[i]t sounds like most of the night . . . incident will be coming in, a good chunk of it in the Government's case-in-chief. But I think that Mr. Hart wants to get out of it, he can get into it without getting into any prior sexual abuse.” Tr. at 53:24-54:3 (Court).

2 There is evidence that Doe was engaging in sexual activity with “a juvenile male” while out on the evening in question. Sexual History Motion at 3. See Tr. at 45:16-46:21 (Hart). Aguilar states, however, that he has “zero intention of asking whether she was assaulted, whether she engaged in any sexual activity, whether -- you know anything related to that itself.” Tr. at 45:2425:2 (Hart).

Finally, in the Plea Statements Motion, Aguilar makes two related requests: (i) that the Court “prohibit the government from using the now rejected plea agreement, the fact that he pleaded guilty, and any statements made during plea negotiations or the plea proceedings as substantive evidence in the government's case-in-chief”; and (ii) that the Court “prohibit the government from using any statements made during plea negotiations, his admission in the plea agreement, or statements made during plea proceedings for impeachment.” Plea Statements Motion at 1. Aguilar states that the United States opposes only the second of these requests. See Plea Statements Motion at 1. Although Aguilar acknowledges that his plea agreement contains a provision waiving the protections of rule 410 of the Federal Rules of Evidence,³ that waiver states that it does not apply “‘under the circumstances where the Court, acting on its own, rejects this plea agreement.'” Plea Statements Motion at 2 (quoting Plea Agreement ¶ 14, at 6, filed November 16, 2022 (Doc. 63)). Here, Aguilar agues, the Court rejected his plea agreement, and thus the plea agreement's rule 410 waiver does not apply. In response, at the hearing, the United States argued that -- before the plea agreement fell apart -- the Court had asked whether the parties needed to amend the plea agreement, see Minute Order, filed March 27, 2023 (Doc. 96)(text-only)(“Do the parties need to amend the Plea Agreement to include all of the elements of the crime to which Aguilar pled and have another plea colloquy with the Magistrate Judge?”), and Aguilar's refusal to amend the agreement means that it was his choice to “implicit[ly]” reject the plea agreement and not the Court's, Tr. at 55:17-56:7 (Marshall). The Court, however, disagreed with this argument, stating that Aguilar “never attempted to withdraw” from the plea agreement and that it was the Court, on its own, that “ended up rejecting” the plea agreement. Tr. at 57:5-6 (Court). Accordingly, the Court concluded that it grants the Plea Statements Motion, but warned Aguilar that his prior statements can be used subsequently “for perjury purposes.” Tr. at 57:23-59:4 (Court, Hart).

3 Rule 410 provides that -- subject to some exceptions -- statements made under plea bargaining are inadmissible against the accused in any criminal or civil proceeding. See Fed.R.Evid. 410.

LAW REGARDING RULE 401 OF THE FEDERAL RULES OF EVIDENCE

“The rules of evidence contemplate the admission of relevant evidence, and the exclusion of irrelevant and potentially prejudicial evidence.” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1247 (D.N.M. 2009)(Browning, J.)(citing Fed.R.Evid. 401, 402, 403). “Relevant evidence is evidence that has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” United States v. Gutierrez-Castro, No. CR 10-2072 JB, 2011 WL 3503321, at *3 (D.N.M. Aug. 6, 2011)(Browning, J.)(citing Fed.R.Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”)). “Rule 401 contains a low threshold for relevance, because ‘[a]ny more stringent requirement is unworkable and unrealistic.'” United States v. Goxcon-Chagal, 885 F.Supp.2d 1118, 1162 (D.N.M. 2012) (Browning, J.)(quoting Fed.R.Evid. 401 advisory committee's note). Irrelevant evidence, or that evidence which does not make a fact of consequence more or less probable, however, is inadmissible. See Fed.R.Evid. 402 (“Irrelevant evidence is not admissible.”).

LAW REGARDING RULE 403 OF THE FEDERAL RULES OF EVIDENCE

Rule 403 provides: “The court may exclude relevant 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, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Under rule 403, the trial court must weigh the proffered evidence's probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir. 1989). “[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403].” United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir. 2006)(quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir. 1991))(emphasis in United States v. Pettigrew and United States v. Sides). “In performing the 403 balancing, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.” Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000). The “exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly.” United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010).

The decision to admit or exclude evidence pursuant to rule 403 is within the trial court's discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir. 1999), and the trial court's discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir. 1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir. 1980). As the Supreme Court of the United States has noted:

In deference to a district court's familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a district court's evidentiary rulings .... This is particularly true with respect to Rule 403 since it requires an “on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.”

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008)(citing 1 S. Childress & M. Davis, Federal Standards of Review § 4.02, at 4-16 (3d ed.1999)). See United States v. Abel, 469 U.S. 45, 54 (1984)(“Assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403 ....”).

Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response from the jury, or if the evidence otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999). “Evidence is not unfairly prejudicial merely because it is damaging to an opponent's case.” United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir. 2008)(quoting United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir. 2003)). Rather, “[t]o be unfairly prejudicial, the evidence must have ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'” United States v. Caraway, 534 F.3d at 1301 (quoting Fed.R.Evid. 403 advisory committee note). See United States v. Valencia-Montoya, No. CR 11-2990 JB, 2012 WL 8251407, at *11 (D.N.M. September 17, 2012)(Browning, J.)(applying rule 403).

LAW REGARDING HEARSAY

“Hearsay testimony is generally inadmissible.” United States v. Christy, 2011 WL 5223024, at *5 (D.N.M. 2011)(Browning, J.)(citing Fed.R.Evid. 802). Under rule 801(c) of the Federal Rules of Evidence, “hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Hearsay evidence is generally inadmissible, “because it is considered unreliable.” United States v. Lozado, 776 F.3d 1119, 1121 (10th Cir. 2015)(citing Williamson v. United States, 512 U.S. 594, 598 (1994)). Courts view hearsay evidence as unreliable, because it is not subject to three devices relied upon to illuminate inaccuracies and evaluate the credibility of testimonial evidence: an oath, personal presence in court, and cross examination. See United States v. Console, 13 F.3d 641, 656 (3d. Cir. 1993).

To constitute hearsay, a statement must be made by a “person”; machine output, accordingly, is not hearsay. Fed.R.Evid. 801(a). See United States v. Channon, 881 F.3d 806, 810-11 (10th Cir. 2018)(holding that summary exhibits consisting of Excel spreadsheets reflecting “machine-generated transaction records,” in which “data was created at the point of sale, transferred to OfficeMax servers, and then passed to the third-party database maintained by SHC” were records “produced by machines,” so they fell “outside the purview of Rule 801, as the declarant is not a person”). For hearsay purposes, a “statement” is “a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed.R.Evid. 801(a). Non-assertions, therefore, such as “questions or requests,” will often not be excluded as hearsay. United States v. Alcorta, 853 F.3d 1123, 1141 (10th Cir. 2017). See Echo Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d 1068, 1087 (10th Cir. 2001)(“If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.” (quoting Fed.R.Evid. 801 advisory committee's note)). The determination of whether something constitutes a statement turns on “the declarant's intent.” 30B Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure § 6714 (3d ed. 2023). See Richard A. Lloret, Assertion and Hearsay, 125 Dick. L. Rev. 347, 356 (2021).

A statement that is otherwise hearsay may be offered for a permissible purpose other than to prove the truth of the matter asserted, including impeaching a witness. See United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir. 2008)(“We have already explained why the content of the statement, if used substantively, would be inadmissible hearsay. If admitted for impeachment purposes, however, it is not hearsay.”). Where the jury may use a statement for both a permissible and impermissible hearsay purpose, the Court may give a limiting instruction. See Fed.R.Evid. 105; United States v. DeLeon, No. CR 15-4268 JB, 2021 WL 4171506, at *6 (D.N.M. September 14, 2021)(Browning, J.)(giving a limiting instruction where a co-conspirator statement was “not offered to prove the truth of the matter asserted”). Finally, Rule 805 of the Federal Rules of Evidence recognizes that “[h]earsay within hearsay” -- commonly referred to as double hearsay -- may be admissible “if each part of the combined statements conforms with an exception to the rule.” Fed.R.Evid. 805. See United States v. Salas-Aguayo, No. CR 12-3109, 2024 WL 453642, at **3-22 (D.N.M. February 6, 2024)(Browning, J.).

1. Rule 801(d)(2) Non-Hearsay.

A statement is not hearsay, even if it is offered for its truth, if it is offered against an opposing party and it:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

Fed. R. Evid. 801(d)(2). The Tenth Circuit, quoting the United States Court of Appeals for the First Circuit, has stated:

“Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule .... No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from restrictive influences of the opinion rule and the rule requiring first-hand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for a generous treatment of this avenue of admissibility.”

Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 667 (10th Cir. 2006)(quoting United States v. Pinalto, 771 F.2d 457, 459 (10th Cir. 1985))(emphasis in Grace United Methodist Church v. City of Cheyenne, but not in United States v. Pinalto).⁴ See United States v. DeLeon, 287 F.Supp.3d 1187, 1257 (D.N.M. 2018)(Browning, J.)(“As against Baca, rule 801(d)(2)(A) permits any statements that Baca made . . . to be used against Baca for their truth notwithstanding rule 802's general hearsay prohibition. Admitting those statements also requires, however, an evidentiary foundation that shows that the statements are what they purport to be.”).

4 The 2011 restyling of the Federal Rules removed “admissions” from the language of rule 801(d) of the Federal Rules of Evidence, and uses instead the term “statements.” Fed.R.Evid. 801(d). This replacement was purposeful: “The term ‘admissions' is confusing because not all statements covered by the exclusion are admissions in the colloquial sense -- a statement can be within the exclusion even if it ‘admitted' nothing and was not against the party's interest when made.” Fed.R.Evid. 801, advisory committee's note on 2011 Amendments. Although the advisory committee made the commentary quoted in the text regarding the trustworthiness of “admissions by a party-opponent” before the 2011 amendments to the Federal Rules of Evidence, the analysis should not be different under the new 2011 restyling of the rules. Because the advisory committee's purpose for the 2011 restyling was to make the rules “more easily understood and to make style and terminology consistent through the rules,” and there was no “intent to change any result in any ruling on evidence admissibility,” the analysis applied before 2011 remains useful for cases after the restyling. Fed.R.Evid. 801.

2. The Rule 803(4) Exception.

In addition to the provisions for non-hearsay, the Federal Rules of Evidence contain a number of exceptions to the hearsay prohibition. See Fed.R.Evid. 803, 804. One of these exceptions, rule 803(4), excepts from the general bar on hearsay “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Fed.R.Evid. 803(4).

As the Court has observed previously, “[t]his exception is premised on the rationale that a patient's statements to his or her physician are likely to be particularly reliable because the patient has a self-interested motive to be truthful.” United States v. Chaco, 801 F.Supp.2d 1200, 1204 (D.N.M. 2011)(Browning, J.). The patient knows that the efficacy of his or her medical treatment depends upon the accuracy of the information he or she provides to the doctor. See United States v. Joe, 8 F.3d 1488, 1493 (10th Cir. 1993), cert. denied, 510 U.S. 1184 (1994). Stated differently, “a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility.” White v. Illinois, 502 U.S. 346, 356 (1992).

The self-interest/treatment rationale, therefore, supports the exception. In United States v. Joe, the Tenth Circuit states:

The Rule 803(4) exception to the hearsay rule is founded on a theory of reliability

that emanates from the patient's own selfish motive -- her understanding “that the effectiveness of the treatment received will depend upon the accuracy of the information provided to the physician.” 2 McCormick on Evidence § 277, at 24647 (John W. Strong ed., 4th ed. 1992).

United States v. Joe, 8 F.3d at 1493-94. In short, it is the patient's self-interest in furnishing accurate information that provides the guarantee of trustworthiness which justifies exempting these out-of-court statements from the general hearsay prohibition. See White v. Illinois, 502 U.S. at 356 (“[A] statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony.”).

“[T]he test for admissibility under rule 803(4) is whether the subject matter of the statements is reasonably pertinent to diagnosis or treatment.” United States v. Tome, 61 F.3d 1446, 1451 (10th Cir. 1995). Accordingly, the Tenth Circuit has rejected the two-part test that the Fourth and the Eighth Circuits have used to evaluate evidence proffered under rule 803(4), stating:

The Fourth and Eighth Circuits . . . have employed the following two-part test to determine a statement's admissibility under Rule 803(4): “first, the declarant's motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.” Renville, 779 F.2d at 436; Morgan, 846 F.2d at 949 (quoting Renville). This two-part test is not contemplated by the rule and is not necessary to ensure that the rule's purpose is carried out.

United States v. Joe, 8 F.3d at 1494 n.5. As the Tenth Circuit explained in United States v. Joe: “[T]he plain language of Rule 803(4) should guide us in determining the admissibility of statements made for purposes of medical diagnosis or treatment.” 8 F.3d at 1494 n.5. Moreover, because it follows the plain language of rule 803(4), the Tenth Circuit has rejected any presumptions against admission of hearsay evidence under the exception in the case of children. See United States v. Edward J., 224 F.3d 1216, 1219 (10th Cir. 2000)(“Edward encourages us to . . . establish a presumption that Rule 803(4) does not apply to statements given by young children to their doctors identifying their abusers unless the physician first explains to the child such information is important for their treatment. We decline to do so.”); United States v. Griffith, 65 F.4th 1216, 1223 (10th Cir. 2023)(affirming United States v. Edward J.'s holding that a victim's statements to a medical provider, identifying an abuser, trigger rule 803(4)'s hearsay exception), cert. denied, 144 S.Ct. 1066 (2024). Moreover, for a hearsay statement to be admissible under rule 803(4), the declarant need not have necessarily made the statement to a physician. As the advisory committee's note to the rule explains, “[s]tatements to hospital attendants, ambulance drivers, or even members of the family might be included.” Fed.R.Evid. 803(4) advisory committee's note.

Finally, A declarant's statement to a physician that identifies the person responsible for the declarant's injuries is ordinarily inadmissible under rule 803(4) because the assailant's identity is usually unnecessary either for accurate diagnosis or effective treatment. See United States v. Joe, 8 F.3d at 1494. The Tenth Circuit held in United States v. Joe, however, that a hearsay statement revealing the identity of a sexual abuser who is a member of the victim's family or household “is admissible under rule 803(4) where the abuser has such an intimate relationship with the victim that the abuser's identity becomes ‘reasonably pertinent' to the victim's proper treatment.” 8 F.3d at 1495. In so holding, the Tenth Circuit reasoned:

All victims of domestic sexual abuse suffer emotional and psychological injuries, the exact nature and extent of which depend on the identity of the abuser.^[] The physician generally must know who the abuser was in order to render proper treatment because the physician's treatment will necessarily differ when the abuser is a member of the victim's family or household. In the domestic sexual abuse case, for example, the treating physician may recommend special therapy or counseling and instruct the victim to remove herself from the dangerous environment by leaving the home and seeking shelter elsewhere.

8 F.3d at 1494-95. Although the victim in United States v. Joe was an adult, the Tenth Circuit stated that “the identity of the abuser is reasonably pertinent in virtually every domestic sexual assault case,” including “statements made by a child to a physician which identify the sexual abuser as a member of the family or household.” 8 F.3d at 1494. Thus, when a victim of domestic sexual abuse identifies her assailant to her physician, the physician's recounting of the identification is admissible under rule 803(4) when it is “reasonably pertinent” to the victim's treatment or diagnosis. United States v. Joe, 8 F.3d at 1495. See United States v. Woody, 45 F.4th 1166, 1178 (10th Cir. 2022), affirming United States v. Woody, 336 F.R.D. 293, 359 (D.N.M. 2020)(Browning, J.).

LAW REGARDING JURY NULLIFICATION

One of the most precious and treasured rights that United States citizens and residents have is the Sixth Amendment to the Constitution's right to “an impartial jury.” U.S. Const. amend. VI. See Pena-Rodriguez v. Colorado, 580 U.S. 206, 210 (2017). This fundamental right is a cornerstone of the American criminal justice system, and the Sixth Amendment has long embodied and protected this means of resolving criminal charges that the government brings. “That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” Blakely v. Washington, 542 U.S. 296, 305-06 (2004). The jury trial right as preserved in the Bill of Rights was passed down from the right that the Magna Carta enshrines. See United States v. Booker, 543 U.S. 220, 239 (2005)(“The Founders presumably carried this concern from England, in which the right to a jury trial had been enshrined since the Magna Carta.”).

1. The Jury's Role at the Founders' Time.

“The colonial jury played a vital and celebrated role in American resistance to British tyranny leading up to the revolution. American counsel regularly argued the validity of laws directly to juries, which often refused to enforce British laws they felt were unjust.” Andrew J. Parmeter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L.J. 379, 382-83 (2007)(footnotes omitted). The Honorable Jack Weinstein, United States District Judge for the Eastern District of New York, has noted that, in 1791, at the time of the Sixth Amendment's ratification, “[i]t was then understood that the jury had the power to refuse to convict even if the facts and law indicated guilt. In later years this fundamental power of the jury -- and the right of the accused -- has been termed the power to ‘nullify.'” United States v. Polouizzi, 549 F.Supp.2d 308, 405 (E.D.N.Y. 2008)(Weinstein, J.)(no source given for quoted material), vacated and remanded on other ground sub nom. United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009). The Supreme Court has recognized that the jury trial right that the Sixth Amendment affords to defendants was understood at the Founders' time to provide essential protections against government tyranny and to safeguard liberty:

[T]he historical foundation for our recognition of these principles extends down centuries into the common law. “[T]o guard against a spirit of oppression and tyranny on the part of rulers,” and “as the great bulwark of [our] civil and political liberties,” 2 J. Story, Commentaries on the Constitution of the United States 540541 (4th ed. 1873), trial by jury has been understood to require that “the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours ....” 4 [Sir William Blackstone, Commentaries on the Laws of England: In Four Books 343 (William D. Lewis ed., 2007)](1769).

Apprendi v. New Jersey, 530 U.S. 466, 477 (2000)(“ Apprendi”). As Alexander Hamilton first noted, this belief in the jury trial right as a safeguard to liberty was widely shared during the Constitution-framing era:

The friends and adversaries of the plan of the Convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury. Or if there is any difference between them, it consists in this; the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.

The Federalist No. 83 at 456 (Scott ed. 1894)(Hamilton). The jury trial right was part and parcel of the Framers' belief that the common person should participate in government, and essential to this participation was ensuring that the judiciary was justly and correctly effectuating the laws, whether the laws were written or natural laws. See Clay S. Conrad, Jury Nullification 45 (1998)(citing Note, The Changing Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170, 172 (1964)); Diary of John Adams, Feb. 12, 1771, in 2 The Works of John Adams 253 (1850)(quoted in Blakely v. Washington, 542 U.S. at 306 (“[T]he common people, should have as complete a control . . . in every judgment of a court of judicature [as in the legislature.]”)); Letter from Jefferson to L'Abbe Arnold, July 19, 1789, in 3 Works of Thomas Jefferson, 81, 82 (1854)(quoted in Mark D. Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582, 582 (1939)(“Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of laws is more important than the making of them.”)).

The criminal jury's role at the Founders' time was primarily that of a factfinder, but also included as a secondary role acting as the community's conscience to determine whether the law, or the application of law to the facts, was conscionable. See United States v. Courtney, 960 F.Supp.2d 1152, 1164 (D.N.M. 2013)(Browning, J.). Professor Irwin A. Horowitz, of Oregon State University, notes: “While the fact-finder role of the jury is the judicially preferred model of jury functioning, a second, less accepted, but nevertheless viable role of the jury is a purveyor of ‘commonsense justice,' the application of a rough and ready sense of what is just and what is not.” Irwin A. Horowitz, Jury Nullification: An Empirical Perspective, 28 N. Ill. U. L. Rev. 425, 427 (2007-2008)(quoting Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 110 (1998)). Similarly, Clay S. Conrad, a trial lawyer in Houston, Texas with the law firm of Looney, Smith & Conrad, P.C., asserts that the Sixth Amendment jury trial right implicitly recognizes criminal juries' right to determine the law -- and thus jury nullification if they believe the law wrong -- because, at the Framers' time, the concept of a jury included the idea that the jury not only decided the facts of a case, but also the law:

The Sixth Amendment itself implicitly recognizes the right of criminal trial jurors to judge the law. Although it does not mention that power explicitly, it can logically be assumed that the definition of a jury used in that document would be consonant with the prevailing definition in the legal dictionaries of the period. The most common legal dictionary in Colonial Virginia was the British Jacob's Law Dictionary [(1782)]; and within the encyclopedic definition given in Jacob's, the word ‘jury' is defined as:

Jury . . . [s]ignifies a certain number of men sworn to inquire and try the matter of fact, and declare the truth upon such evidence as shall be delivered them in a cause: and they are sworn judges upon evidence in matter of fact .... Juries are . . . not finable for giving their verdict contrary to the evidence, or against the direction of the court; for the law supposes the jury may have some other evidence than what is given in court, and they may not only find things of their own knowledge, but they go according to their consciences.

The right of jurors to judge “according to conscience,” then, was implicit within the word “jury” as the drafters of the Bill of Rights understood it. This was the trial by jury the founders knew, and this was the trial by jury they intended to pass on to their progeny.

C. Conrad, supra, at 46-47 (footnotes omitted). The assertion that criminal juries embraced decisions of law as well as fact finds support in precedent caselaw from the Founders' era.

In Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794),⁵ a civil case, the Supreme Court noted that the role of the jury is to be the ultimate finder both of the facts and of the law. See 3 U.S. at 4. A jury decided the case even though the Supreme Court had original jurisdiction, because the State of Georgia was a party to the case. The Honorable John Day, then-Chief Justice of the United States, charged the jury:

5 Georgia v. Brailsford is the only published case in which the Supreme Court has presided over a jury trial. The Seventh Amendment to the Constitution of the United States of America preserves the use of a jury in federal common law suits that would have used a jury when the Seventh Amendment was adopted. Although it would seem remarkable for the Supreme Court to preside over a jury trial today, the Supreme Court historically impaneled juries at the beginning of every term. The Supreme Court even heard at least three cases with juries in the 1790s. Georgia v. Brailsford is, however, the only case that was reported. The Supreme Court has shifted its practice in modern times by delegating any fact finding to a special master. The Supreme Court, moreover, when exercising its original jurisdiction hears mostly equitable cases, which do not require a jury. See Lochlan F. Shelfer, Special Juries in the Supreme Court, 123 Yale L.J. 208, 210-11 (2013).

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution ofjurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.

3 U.S. at 4. In People v. Croswell, 3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804), meanwhile, Alexander Hamilton was counsel for the defendant, who was indicted for libel against then-President Thomas Jefferson. The trial court in the case instructed the jury that they were to enter a special, as opposed to general, verdict limited to finding only two issues: (i) whether the article was published; and (ii) whether the article's innuendos were true or false. See 3 Johns. Cas. At 342. The jury was instructed that the defendant's intent -- the element requiring that the defendant intended the statements to be libelous -- was a matter of law exclusively for the court. See 3 Johns. Cas. at 341-42. Mr. Hamilton argued:

The Chief Justice misdirected the jury, in saying they had no right to judge of the intent and of the law. In criminal cases, the defendant does not spread upon the record the merits of the defence, but consolidates the whole in the plea of not guilty. This plea embraces the whole matter of law and fact involved in the charge, and the jury have an undoubted right to give a general verdict, which decides both the law and the fact.... All the cases agree that the jury have the power to decide the law as well as the fact; and if the law gives them the power, it gives them the right also. Power and right are convertible terms, when the law authorizes the doing of an act which shall be final, and for the doing of which the agent is not responsible.

The intent constitutes crime. To deny, then, to the jury the right to judge of the intent, and yet to require them to find a general verdict of guilty, is requiring them to commit perjury. The particular intent constitutes the crime, in cases of libel, beca[us]e the act is not, of itself, unlawful; and where the particular intent alone constitutes the guilt, the court cannot judge of that intent, and the jury must find it....

It is admitted to be the duty of the court to direct the jury as to the law, and it is advisable for the jury in most cases, to receive the law from the court; and in all cases, they ought to pay respectful attention to the opinion of the court. But, it is also their duty to exercise their judgments upon the law, as well as the fact; and if they have a clear conviction that the law is different from what it is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions. It is essential to the security of personal rights and public liberty, that the jury should have and exercise the power to judge both of the law and of the criminal intent.

2 Johns. Cas. at 345-46. The prosecution countered that the sound administration of court business requires that juries be permitted to determine the facts only:

The jury have, undoubtedly, the power, in criminal cases, to decide the law as well as the fact, if they will take upon themselves the exercise of it; but we must distinguish, in this case, between power and right. It is the right of the jury to decide the fact, and only the fact; and it is the exclusive province of the court to decide the law in all cases, criminal as well as civil. A jury is wholly incompetent, and necessarily must be, from the nature of their institution, to decide questions of law; and if they were invested with this right, it would be attended with mischievous and

fatal effects. The law, instead of being a fixed rule, would become uncertain and capricious, and there would not remain any stability or uniformity of decision, or certainty of principle, in the administration of justice....

If the jury were to judge of the law in the case of libels, why not of the effect of writings in civil cases, and of the law in all cases where the plea is the general issue? Surely the counsel on the other side are not prepared to carry their doctrine to this extent.

3 Johns. Cas. 350-51. Mr. Hamilton replied:

But it is not only the province of the jury, in all criminal cases, to judge of the intent with which the act was done, as being parcel of the fact; they are also authorized to judge of the law as connected with the fact. In civil cases, the court are the exclusive judges of the law, and this arose from the nature of pleadings in civil suits; for, anciently, matters of law arising in the defence, were required to be spread upon the record, by a special plea, and the jury were liable to an attaint for finding a verdict contrary to law. But in criminal cases, the law and fact are necessarily blended by the general issue, and a general verdict was always final and conclusive, both upon the law and the fact. Nor were the jury ever exposed to an attaint for a verdict in a criminal case; and this is decisive to prove that they had a concurrent jurisdiction with the court on questions of law; for where the law allows an act to be valid and definitive, it presupposes a legal and rightful authority to do it. This is a sure and infallible test of a legal power.

In England, trial by jury has always been cherished, as the great security of the subject against the oppression of government; but it never could have been a solid refuge and security, unless the jury had the right to judge of the intent and the law.

The jury ought, undoubtedly, to pay every respectful regard to the opinion of the court; but suppose a trial in a capital case, and the jury are satisfied from the arguments of counsel, the law authorities that are read, and their own judgment, upon the application of the law to the facts, (for the criminal law consists in general of plain principles,) that the law arising in the case is different from that which the court advances, are they not bound by their oaths, by their duty to their creator and themselves, to pronounce according to their own convictions? To oblige them, in such a case, to follow implicitly the direction of the court, is to make them commit perjury, and homicide, under the forms of law. Their error is fatal and cannot be corrected. The victim is sacrificed; he is executed; he perishes without redress. Was he a juror, in such a case, he would endure the rack rather than surrender his own convictions on the altar of power, rather than obey the judicial mandate.

People v. Croswell, 3 Johns. Cas. at 355-56.

The Supreme Court of New York was equally split, with two justices agreeing with Mr. Hamilton and two justices siding with the prosecution. The Honorable James Kent, then-Associate Justice of the Supreme Court of New York, wrote in agreement with Mr. Hamilton that “[t]here is nothing peculiar in the law of libels, to withdraw it from the jurisdiction of the jury” by requiring a special verdict. 3 Johns. Cas. at 365-66. Justice Kent reasoned that, in all other areas of criminal law, the jury is charged with finding intent:

The jury are called to try, in the case of a traitor, not only whether he committed the act charged, but whether he did it traitorously; and in the case of a felon, not only whether he killed such a one, or took such a person's property, but whether he killed with malice prepense, or took the property feloniously. So in the case of a public libeller, the jury are to try, not only whether he published such a writing, but whether he published it seditiously. In all these cases, from the nature of the issue, the jury are to try not only the fact, but the crime, and in doing so, they must judge of the intent, in order to determine whether the charge be true, as set forth in the indictment.... The law and fact are so involved, that the jury are under an indispensable necessity to decide both, unless they separate them by a special verdict.

3 Johns. Cas. at 366-67. He thus concluded:

[U]pon every indictment or information for a libel, where the defendant puts himself upon the country, by a plea of not guilty, the jury have a right to judge, not only of the fact of the publication, and the truth of the innuendoes, but of the intent and tendency of the paper, and whether it be a libel or not; and, in short, of “the whole matter put in issue upon such indictment or information.” That in this, as in other criminal cases, it is the duty of the court, “according to their discretion, to give their opinion and direction to the jury on the matter in issue;” and it is the duty of the jury to receive the same with respectful deference and attention, and, unless they choose to find a special verdict, they are then to exercise their own judgments on the matter in issue, with discretion and integrity.

3 Johns. Cas. at 376-77 (quoting Stat. 32 Geo. III).

The Honorable Morgan Lewis, then-Chief Justice of the Supreme Court of New York, disagreed with Mr. Hamilton and Justice Kent, and concluded that the policies behind not constricting a jury to deciding matters of law are not present in the United States as they were in England:

It has been urged, that to deny a jury the right of deciding on the law and the fact, in all cases of criminal prosecution, is contrary to the spirit and genius of our government. But how, has not been attempted to be shown. In England, where the judges are appointed by the crown, and juries form a substantial barrier between the prerogatives of that crown and the liberties of the people, the reasons for extending the powers of the latter are certainly much stronger than with us, where the judges are, in effect, appointed by the people themselves, and amenable to them for any misconduct.

People v. Croswell, 3 Johns. Cas. at 409.

As Judge Weinstein notes in United States v. Polouizzi, the negative connotations surrounding nullification “ignore history and the meaning of the Sixth Amendment.” 549 F.Supp.2d at 405. The history to which Judge Weinstein refers is the dual roles that the common-law jury played at the Founders' time: its primary role was as factfinder, but its secondary role was to also find the law, often by acquitting if the jury found the law unjust. See I. Horowitz, supra, at 427 (“While the fact-finder role of the jury is the judicially preferred model of jury functioning, a second, less accepted, but nevertheless viable role of the jury is a purveyor of ‘commonsense justice,' the application of a rough and ready sense of what is just and what is not.” (quoting Amar, The Bill of Rights: Creation and Reconstruction, supra, at 112)).

The jury's nullification power was well-known and used during the Founders' time, as common-law juries during the seventeenth and eighteenth century saw the development of the jury's power to acquit against the facts, or, as it was referenced in the time, to find the law in addition to the facts. See United States v. Courtney, 960 F.Supp.2d at 1189-90. In the late-seventeenth century, Edward Bushell, who had been imprisoned for his role in acquitting -- against the court's direction to convict -- two Quakers of the offenses of unlawful assembly and breaching the peace resulting from their preaching, petitioned for a writ of habeas corpus. See United States v. Polouizzi, F.Supp.2d at 405; C. Conrad, supra, at 24. When the judge instructed the jury about the facts which the prosecution needed to prove to convict, the judge instructed the jury that the prosecution had proved those facts and instructed the jury it was their job to find as fact that the defendants had committed the crimes. See C. Conrad, supra, at 26 (quoting The Tryal of Wm. Penn and Wm. Mead for Causing a Tumult . . ., How. St. Tr. at 6:951 (1670)). When the jury refused to convict, and Bushell was imprisoned for his failure thereafter to pay a fine, the Honorable John Vaughn, then-Chief Justice of the Court of Common Pleas, held that to require a jury to find guilt because the court believed that all elements of the law were proven is to make the use of a jury superfluous. See C. Conrad, supra, at 27. As one scholar notes, Chief Justice Vaughn's decision “ushered in . . . ‘the heroic age of the English jury,' during which ‘trial by jury emerged as the principle defense of English liberties,'” C. Conrad, supra, at 28 (quoting J.M. Beattie, London Juries in the 1690's 214, in J. S. Cockburn & Thomas A. Green, eds., Twelve Good Men and True (1988)), and which influenced the common-law jury to the point that, at the Founders' time, “jury [nullification] [w]as an accepted part of the American law for the next several generations,” C. Conrad, supra, at 32.

The Supreme Court in its recent sentencing opinions has not only discussed that the Sixth Amendment jury trial right guarantees the “historical foundation” of the jury as “guard[ing] against a spirit of oppression and tyranny on the part of rulers, and as the great bulwark of [our] civil and political liberties,” Booker, 543 U.S. at 239 (quoting Apprendi, 530 U.S. at 477)(alterations in Booker, not Apprendi), but specifically has pointed to the jury's nullification power at common law. The Supreme Court referenced the jury's power to find against the facts that the evidence establishes in both Apprendi and Jones v. United States, 526 U.S. 227 (1999), noting that “juries devised extralegal ways of avoiding jury verdicts . . . .” Apprendi, 530 U.S. at 479 n.5. In Jones v. United States, the Supreme Court similarly noted that “[t]his power to thwart Parliament and Crown took the form . . . of flat-out acquittals in the face of guilt ....” 526 U.S. at 245 (quoting 4 W. Blackstone, supra, at 238-39). The authorities suggest that the common-law jury at the Founders' time had the ability to nullify by acquitting the defendant against the facts that the evidence establishes at trial, or -- as it was called at the time -- to determine the law.

There is, therefore, a tension between the historical authority about the common-law jury's role and the Supreme Court's finding in Sparf v. United States “that the law in England at the date of our separation from that country . . . falls far short of the contention that the jury, in applying the law to the facts, may rightfully refuse to act upon the principles of law announced by the court.” 156 U.S. at 90. Justice Harlan's inclusion of the word “rightfully” before “refuse” leaves this statement open to interpretation that, although the nullification power was part of the commonlaw jury's role, it was nevertheless wrongful to exercise it. Such an argument is, however, irreconcilable with the recent Supreme Court decisions' recognition of the crucial importance of the common-law jury's mitigation power to the Sixth Amendment's preservation of the jury trial right.

2. Jurors on Common-Law Juries Used Their Knowledge of Their Verdict's Sentencing Ramifications in Reaching Their Verdict.

Juries at the Founders' time not only knew about the sentencing ramifications of their verdicts, but historical evidence shows that juries weighed heavily the defendant's sentence in reaching their verdicts. In looking at jury verdicts throughout the eighteenth century in colonial New York, Professor Goebel concludes:

The verdicts . . . are illustrative of one of the most important aspects of the jury's prerogative -- the power to effect a mitigation in the severity of the law by verdicts which would let off an obvious offender with penalties less than the worst of the charges against him would make inevitable. This power was not confined to the

selection of a relatively innocuous count on which to return a conviction, but extended, as indicated above, to a finding of an offense less in degree than that charged in the indictment. The importance of this rule in the case of felonies was obvious, since it was possible thus for the defendant to pray clergy and escape the rigor of the otherwise inevitable judgment of life and limb.

J. Goebel & T. Naughton, supra, at 673 (footnotes omitted). The eighteenth-century jury in England also consistently exercised its power to effect a mitigation of the defendant's sentence. Professor Langbein notes that “only a small fraction of eighteenth-century criminal trials were genuinely contested inquiries into guilt or innocence .... To the extent that trial had a function in such cases beyond formalizing the inevitable conclusion of guilt, it was to decide the sanction. These trials were sentencing proceedings.” Ryder Sources, supra, at 41.

The Supreme Court has twice noted the common-law jury's mitigation power stemming from their knowledge of the repercussion of guilty verdicts. In Jones v. United States, the Supreme Court notes that “competition developed between judge and jury,” and provided the jury's mitigation power as an example: “The potential or inevitable severity of sentences was indirectly checked by juries' assertions of a mitigating power when the circumstances of a prosecution pointed to political abuse of the criminal process or endowed a criminal conviction with particularly sanguinary consequences.” Jones v. United States, 526 U.S. at 245. In Apprendi, the Supreme Court again referenced this mitigation power, noting that, at the Founders' time:

[J]uries devised extralegal ways of avoiding a guilty verdict, at least of the more severe form of the offense alleged, if the punishment associated with the offense seemed to them disproportionate to the seriousness of the conduct of the particular defendant. [Jones v. United States, 526 U.S.] at 245 . . . (“This power to thwart Parliament and Crown took the form not only of flat-out acquittals in the face of guilt but of what today we would call verdicts of guilty to lesser included offenses, manifestations of what Blackstone described as ‘pious perjury' on the jurors' part. 4 Blackstone 238-239”).

Apprendi, 530 U.S. at 480 n.5. It is thus clear that the Supreme Court's conception of the common- law jury which the Sixth Amendment protects includes a jury with knowledge of the sentences a guilty defendant faces and a jury that uses this knowledge to reach its verdict.

That there was knowledge germane to common-law jurors does not clearly suggest that preventing parties from educating juries about sentencing ramifications is inconsistent with the Sixth Amendment's jury trial right. If, for instance, a juror at the Founders' time knew the sentence that a guilty defendant faced only because there existed a very limited number of laws and a much more limited class of potential sentences, then courts' refusal today to admit parties' proffered evidence on this subject does not clearly violate the defendant's Sixth Amendment right. It thus may seem tenuous to argue that the Sixth Amendment is implicated, because of knowledge lost given that, since the Framers' time, the jury pool has enlarged and grown relatively less educated about the criminal law, without any affirmative judicial conduct besides excluding evidence about sentencing information. The Supreme Court has recognized that the Sixth Amendment “limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury,” Blakely v. Washington, 542 U.S. at 308; a change resulting from the inclusion of a broader base of citizens in the jury pool, or from an evolution of the jurors in the jury pool, without courts' affirmative exertion of power, may not implicate the Sixth Amendment jury trial right; that is, merely leaving unbothered the modern jury in its state of ignorance may not infringe on the Sixth Amendment jury right, if Sixth Amendment concerns arise primarily when the judiciary invades affirmatively the jury's province. That is, refusing to permit parties to rehabilitate the jury to its former, fuller knowledge of sentencing ramifications may raise no Sixth Amendment stakes. On the other hand, however, even if the jury's lack of knowledge about the sentence that the defendant faces is diminished, because the modern-day jury is left without information that appears to have been important to the common-law jury's verdict and its power to mitigate the defendant's sentence, the substance of the defendant's Sixth Amendment jury trial right appears to have deteriorated substantially. See Booker, 543 U.S. at 237 (stating that the Supreme Court's holding that the Sentencing Guidelines are unconstitutional if mandatory “is an answer not motivated by Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance”). To be consistent with what the Framers thought a jury was at the time of the Bill of Rights' adoption, it may no longer be defensible to keep the jury so ignorant of the verdict's sentencing ramifications; on this view, courts should not prevent parties from educating a jury about the ramifications of its verdict.

3. Jury Knowledge of Sentencing Ramifications in Modern Times.

“It 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 v. United States, 512 U.S. 573, 579 (quoting Rogers v. United States, 422 U.S. at 40). The Supreme Court explains that its reasoning is to avoid confusion and keep separate the jury's factfinding role from the judge's role in determining the sentence the law requires:

The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury's function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury's task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion.

Shannon v. United States, 512 U.S. at 579. In support of this proposition, the Supreme Court cites Rogers v. United States, in which the Supreme Court held that the district court erred when, without notice to the defendant and out of the defendant's presence, it answered in the affirmative a communication which the jurors sent during their deliberations inquiring whether the court would accept a verdict of guilty as charged “with extreme mercy of the Court.” 422 U.S. at 37, 40. The Supreme Court concluded that the district court's statements to the jurors irreparably prejudiced the defendant, reasoning that the court's statements might have induced a verdict that the jury would not otherwise have reached:

The fact that the jury, which had been deliberating for almost two hours without reaching a verdict, returned a verdict of “guilty with extreme mercy” within five minutes “after being told unconditionally and unequivocally that it could recommend leniency,” United States v. Glick, 463 F.2d 491, 495 (2d Cir. 1972), strongly suggests that the trial judge's response may have induced unanimity by giving members of the jury who had previously hesitated about reaching a guilty verdict the impression that the recommendation might be an acceptable compromise.

Rogers v. United States, 422 U.S. at 40.

The Tenth Circuit has stated: “The authorities are unequivocal in holding that presenting information to the jury about possible sentencing is prejudicial. Breach of this standard has often been grounds for reversal.” United States v. Greer, 620 F.2d at 1384. The Tenth Circuit has held specifically that an instruction on possible minimum sentences is not required absent a jury's required participation in sentencing and that a district court has no discretion to instruct the jury on sentencing ramifications. See United States v. Parrish, 925 F.2d 1293, 1299 (10th Cir. 1991)(“We hold a jury instruction about mandatory minimum sentences was properly omitted because the offenses do not specifically require jury participation in sentencing.”); United States v. Gehringer, 385 Fed.Appx. 830, 834 (10th Cir. 2010)(unpublished)(“In light of established Tenth Circuit and Supreme Court authorities, the district court had no discretion to instruct the jury on the sentencing penalties, and therefore did not abuse its discretion in denying the defendant's request.”).

4. Withholding Knowledge About Sentencing From The Modern-Day Jury Leaves The Jury Without Knowledge That It Would Have Had At The Framers' Time.

Judicial power as it relates to sentencing in the modern criminal court system appears to infringe on the Sixth Amendment's reservation of jury power in two interrelated areas. At the Framers' time, judges had discretion regarding sentences for misdemeanors -- largely between corporal punishment and banishment -- but, for felonies, judges until the nineteenth century had no discretion in relation to sentencing. See Apprendi, 530 U.S. at 481 (noting “the 19th-century shift in this country from statutes providing fixed-term sentences to those providing judges with discretion within a permissible range”); id. at 482 (noting “[t]he historic link between verdict and judgment and the consistent limitation on judges' discretion to operate within the limits of the legal penalties . . . .”); Ryder Sources, supra, at 41 (noting the mandatory sentences for felonies either were transportation/banishment if the benefit of the clergy was available, or death if the benefit was not available, and, for misdemeanors, the punishment was transportation or whipping). While Congress' power to make law includes “the power to fix the sentence for a federal crime,” Mistretta v. United States, 488 U.S. 361, 364 (1989), Congress' creation of over 3,000 federal laws presents significant problems for jurors who may wish to educate themselves about sentencing repercussions for certain criminal offenses, and the federal Sentencing Guidelines have made selfeducation of potential sentences virtually impossible. Although a juror may be educated about statutory minimums and maximums, a juror cannot educate fully him or herself about a defendant's potential sentence according to the Guidelines, because the Guidelines take into account the defendant and the crime's circumstances, and, after Booker, allow a judge to depart from a Guidelines sentence. The Sentencing Guidelines are enacted pursuant to Congress' power to make laws and to delegate that power. See Mistretta v. United States, 488 U.S. at 361. The amount of information available about sentencing has eroded the jury's ability to take into consideration the potential penalty that the defendant faces and eroded its ability to use its mitigation power, see Apprendi, 530 U.S. at 483 (noting “the Framers' fears ‘that the jury right could be lost not only by gross denial, but by erosion'” (quoting Jones v. United States, 526 U.S. at 247-48)).

Second, judges had some discretion at the Framers' time to sentence within a prescribed range, even if it applied only in the limited situations of misdemeanors. The prohibition on any mention to the jury of a guilty verdict's sentencing implications does not find support in the Ryder in the 1750s, who, at least, was not required to keep information about the sentencing implications of the verdict from the jury. Ryder Sources, supra, at 22. Similarly, in United States v. Battiste, Justice Story in 1835 read to the jury the statute pursuant to which the defendant was charged, which included the sentencing ramification: “Death.” 24 F. Cas. at 1044. Judges therefore were not required to keep anyone from informing juries about the verdict's sentencing implications.

5. Where the Verdict Does Not Alter the Minimum and/or Maximum Sentence Imposed on the Defendant, the Court is Not Free to Give the Jury Sentencing Information.

Neither Supreme Court nor Tenth Circuit precedent prohibits, wholesale, any mention of possible sentences. See United States v. Courtney, 960 F.Supp.2d at 1185. Rather, the modernday principle is limited to those situations in which “a jury has no sentencing function.” Shannon v. United States, 512 U.S. at 579. The Supreme Court in Apprendi held that “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” 530 U.S. at 490, and the jury is therefore required to participate in finding a fact that, by changing the mandatory maximum, changes substantially the nature of the sentence. Similarly, in Jones v. United States, the Supreme Court construed 18 U.S.C. § 2119 to constitute three separate offenses, rather than one sentence with three factual considerations for sentencing, because it reasoned that, to leave to a judge factual findings which would mean the difference between a sentence of up to fifteen years, up to twenty-five years, or up to life, implicates the defendant's Sixth Amendment jury trial right. See United States v. Courtney, 960 F.Supp.2d at 1185. On the one hand, the Supreme Court's constitutional requirement that a jury participate in factfinding where the fact is necessary to a sentence with a substantially different punishment is analogous to the factual finding required in the case which Ryder notes, where the jury was to determine whether the total value of stolen goods was forty shillings or more, as a finding of forty shillings makes mandatory a death sentence and precludes the possibility of the benefit of the clergy. See United States v. Courtney, 960 F.Supp.2d at 1185. Similarly, whereas Justice Story in United States v. Battiste instructed the jury by reading them the statute which included the punishment, see United States v. Courtney, 960 F.Supp.2d at 1185 -- courts instruct contemporary juries if the death sentence is a possible punishment for their potential jury's return of a guilty verdict, see United States v. Courtney, 960 F.Supp.2d at 1185. Moreover, modern juries may know that the return of a guilty verdict in a capital case -- such as first-degree murder -- in their jurisdiction puts at issue a possible death sentence. See United States v. Courtney, 960 F.Supp.2d at 1185. On the other hand, in Ryder's example, he appears not only to have required the jury to find a fact upon which an enhanced sentence depends, but to have gone further and instructed the jury specifically about the implications of finding the particular fact. Ryder notes that “I told them that 40s. was necessary to make him guilty of felony that was without benefit of clergy,” Ryder Sources, supra, at 22; by telling the jury that fact, he instructed it specifically that the implications of the factual finding meant an increased maximum sentence, or, rather, the preclusion of anything except for the maximum sentence, see United States v. Courtney, 960 F.Supp.2d at 1186.

Even when a juror's participation is required to enhance a mandatory minimum sentence, modern courts do not instruct the jury on the sentencing implications of the factual findings that they make. See United States v. Courtney, 960 F.Supp.2d at 1186. In the case of drug-trafficking, for example, where the amount of the drugs in which the defendant traffics determines the statutory maximum and minimum, the jury is not told, as Ryder told the jury in another context, the line at which the possible relief from the death sentence becomes impossible, or that there is a line at which the statutory maximum and minimum sentence changes. See United States v. Courtney, 960 F.Supp.2d at 1186. Requiring courts to withhold from jury instructions a guilty verdict's ramifications therefore violates the defendant's Sixth Amendment jury trial right as the Founders thought of that right.

Current Supreme Court and Tenth Circuit law makes clear, however, that withholding sentencing information from juries not directly participating in sentencing does not unconstitutionally invade the province of the jury. See United States v. Courtney, 960 F.Supp.2d at 1186. The Supreme Court, in the majority opinion that the Honorable John Paul Stevens, then-Associate Justice of the Supreme Court of the United States, authored in Apprendi, stated that there are organic changes which take place in trial practices without violating the Sixth Amendment: “We do not suggest that trial practices cannot change in the course of centuries and still remain true to the principles that emerged from the Framers' fears ‘that the jury right could be lost only by gross denial, but by erosion.'” 530 U.S. at 483 (quoting Jones v. United States, 526 U.S. at 247-48). The Supreme Court has thought to date that the evolution of judicial practice to prohibit instructions about sentencing ramifications where the jury's factfinding does not fundamentally affect the defendant's sentencing ramifications to avoid “distract[ing] them from their factfinding responsibilities, and creat[ing] a strong possibility of confusion,” Shannon v. United States, 512 U.S. at 579, is such a Constitutional change in trial practice. The Supreme Court's recent sentencing opinions, represent a narrow construction of the Sixth Amendment's jury trial right. The Supreme Court in Booker held that the Sentencing Guidelines' mandatory nature is unconstitutional, in part because the Guidelines, in taking into consideration the defendant's relevant conduct, often produces a sentencing range higher than the mandatory maximum allowed based on facts which the jury found. See United States v. Courtney, 960 F.Supp.2d at 1186. The Supreme Court construed the Guideline sentencing range that the Sentencing Guidelines produces as advisory rather than mandatory, because requiring a sentence imposed beyond the maximum sentence that the jury's verdict allows violated the defendant's Sixth Amendment jury trial right to “in a meaningful way guarantee[] that the jury would still stand between the individual and the power of the government under the new sentencing regime.” Booker, 543 U.S. at 237. The Supreme Court noted that this construction “is an answer not motivated by Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance.” 543 U.S. at 237. In Apprendi, the Supreme Court quoted its recognition in Jones v. United States that the Sixth Amendment's substance, as the Founders saw it, is its protection against substituting new methods of trial in place of the jury trial:

As we stated in Jones: “One contributor to the ratification debates, for example, commenting on the jury trial guarantee in Art. III, § 2, echoed Blackstone in warning of the need ‘to guard with the most jealous circumspection against the introduction of new, and arbitrary methods of trial, which, under a variety of plausible pretenses, may in time, imperceptibly undermine this best preservative of LIBERTY.' A [New Hampshire] Farmer, No. 3, June 6, 1788, quoted in The Complete Bill of Rights 477 (N. Cogan ed. 1997).”

Apprendi, 530 U.S. at 484 n.11 (quoting Jones v. United States, 526 U.S. at 248). See Booker, 543 U.S. at 238-39 (“The Framers of the Constitution understood the threat of ‘judicial despotism' that could arise from ‘arbitrary punishments upon arbitrary convictions' without the benefit of a jury in criminal cases.” (quoting The Federalist No. 83 at 499 (C. Rossiter ed. 1961))). Whereas the Supreme Court has held that certain facts necessary to impose a greater mandatory maximum statutory sentence require jury participation in finding those facts, substituting a court's finding of those facts, especially where the standard of proof is a preponderance of the evidence rather than beyond a reasonable doubt, effectively would introduce a new method of trial. The Supreme Court's recent sentencing decisions requiring jury participation in this factfinding and precluding a court's substitution of facts for the jury's, therefore, preserves the jury's factfinding role as it existed at the Founders' times. Presumably the Supreme Court justifies the contemporary practice to withhold sentencing ramifications from the jury at trial where its factfinding does not affect substantially the sentence imposed -- i.e., does not affect the range in which the judge can exercise discretion -- effectively does not introduce a new arbitrary method of trial as a substitute for a jury trial, but rather continues the practice of allowing the judge to exercise discretion in sentencing. See Apprendi, 530 U.S. at 482 n.9 (“Under the common-law procedure, the court determines in each case what within the limits of the law shall be the punishment -- the question being one of discretion.” (emphasis in original)(quoting 1 J. Bishop, Criminal Law §§ 933-34(1) (9th ed. 1923))). The Supreme Court in Booker noted that, as Mr. Hamilton wrote in The Federalist No. 83, the Framers' intent in ratifying the Sixth Amendment was to protect from judicial despotism by mandating a jury trial in criminal cases; the Supreme Court apparently has concluded that to withhold instruction about sentencing ramifications from a jury whose facts do not affect the defendant's possible mandatory maximum sentence does not change that the criminal jury trial right is exercised, and fully protected and satisfied, when the jury finds as fact whether the defendant committed the crime. Moreover, the Supreme Court apparently has decided that, in a contemporary society in which Congress has enacted over 3,000 federal criminal laws and substituted mandatory criminal sentences for the Sentencing Guidelines, the requirement to not allow evidence or argument about possible sentences stems from the concern that their knowledge of sentencing ramifications “distracts them from their factfinding responsibilities, and creates a strong possibility of confusion,” Shannon v. United States, 512 U.S. at 579 , and that keeping the jurors ignorant preserves the defendant's criminal jury trial right.

The Supreme Court's conclusion that withholding sentencing information may help protect the defendant's Sixth Amendment jury trial right finds support in the Supreme Court's decision in Rogers v. United States, in which the Supreme Court held that the district court erred when it told the jury that it would accept a guilty verdict “with extreme mercy of the Court.” 422 U.S. at 40. The Supreme Court reasoned that the district court's statements to the jurors prejudiced the defendant, reasoning that the court's statements might have induced a verdict that the jury would not otherwise have reached:

The fact that the jury, which had been deliberating for almost two hours without reaching a verdict, returned a verdict of “guilty with extreme mercy” within five minutes “after being told unconditionally and unequivocally that it could recommend leniency,” United States v. Glick, 463 F.2d at 495, strongly suggests that the trial judge's response may have induced unanimity by giving members of the jury who had previously hesitated about reaching a guilty verdict the impression that the recommendation might be an acceptable compromise.

Rogers v. United States, 422 U.S. at 40. Were the parties permitted to produce evidence and raise argument to the jury about the defendant's possible sentence, there is then the issue of what the parties would say. They likely could give statutory minimum and maximum, or educate the jury about the Sentencing Guidelines and their advisory nature. The Sentencing Guidelines are often difficult for those with legal training to understand, but the Supreme Court's concern for instructions about sentencing possibilities leading to jury confusion underestimates the intelligence of juries, which need not engage with information beyond what the sentencing possibilities may be; the jury does not have to determine what the sentence will be, but just would need to understand what it may be.⁶ Moreover, defendants may find that, as the jury in Rogers v. United States quickly decided to convict after they learned that the court may be lenient toward the defendant, knowledge about the Sentencing Guidelines range the defendant faces, and the possibility that a court may vary downward from the guidelines sentence, may result in a guilty verdict where a jury might not otherwise reach one. Even though the discretion to inform the jury about possible sentences likely would be left to the defendant's wishes, the defendant may learn to be careful about what he or she wishes.

6 There are not as many federal criminal trials as there used to be. See [The Honorable] Robert J. Conrad Jr., [United States District Judge for the United States District Court for the Western District of North Carolina; Member of the Executive Committee of the U.S. Judicial Conference], and Katy L. Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges, 86 Geo. Wash.L.Rev. 99, 99 (2018)(stating that “Federal criminal jury trials are dying. Surely, but not slowly. Within the ten-year span from 2006 to 2016, the absolute number of cases disposed of by jury trial declined by forty-seven percent”). The Court tried nineteen criminal cases in its first two years; last year, it had five criminal trials. The United States Probation Office (“USPO”) could generate a Form 13 for the relatively few defendants who go to trial. A Form 13 is a pre-plea Presentence Investigation Report, see United States v. Vasquez, No. CR 09-3613, 2011 WL 5238817, at *2 (D.N.M. October 24, 2011)(Browning, J.), that the USPO prepares for many defendants who need to know what the guideline range will be if they plea or go to trial. If there are no objections to the Form 13, the parties could tell the jury that the guidelines calculation will be the one the judge will likely use. If there is an objection, the Court can deal with it pre-trial or, if that is not possible, tell the jury that there is an objection to an enhancement and what impact that objection may have on the sentencing guidelines range.

The Court does not minimize the difficulties that fully informing juries about the sentencing ramifications that its verdicts would present, but they are not any more difficult than other issues that parties must explain to the jury.⁷ There may be good prudential reasons why the modern American court system has decided to tell the jury not to think about sentencing. See United States v. Courtney, 960 F.Supp.2d at 1188. The Constitution was not designed, however, to be neat and efficient, but to protect individual liberty against government despotism. To keep the jury ignorant of sentencing ramifications is not consistent with the concept of a jury trial at the Founders' time. See United States v. Courtney, 960 F.Supp.2d at 1188. To protect fully the defendant's right to a jury trial, it appears necessary to allow him or her to advise the jury about the sentencing ramifications of its verdict. Cf. Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine 11 (2014)(discussing at length “why and how the [criminal justice] system must come to grips with the power of jurors to judge the law”); Daniel Epps & William Ortman, The Informed Jury, 75 Vand. L. Rev. 823, 827, 833-35 & 834 n.51 (2022)(drawing on the Court's cases in concluding that “our judicial system has lost sight of the original promise of a jury guaranteed in our Constitution,” because “informing juries about the full statutory range of potential punishment . . . is most consistent with the basic premises of the criminal jury system” (citing United States v. Woody, 336 F.R.D. 293, 311-17 (D.N.M. 2020)(Browning, J.)); Michael G. Bliss, The American Jury and Justice Story: How One Supreme Court Justice Nullified the Conscience of the Community, 46 Am. J. Trial Advoc. 1, 50-52 (2022)(“[D]elivering a general verdict is not amoral mathematics, and that criminal guilt does not exist in any trial, no matter the judge, until all twelve jurors say that it does.” (citing United States v. Woody, 336 F.R.D. at 339)).

7 The fear of juries often comes from appellate courts that do not deal with juries often, if ever, in their careers. Juries are, however, quite capable. After Blakely v. Washington and before Booker, the Court and the Honorable Bruce D. Black, then-United States District Judge for the District of New Mexico, submitted guidelines enhancements to the jury, out of concern that an enhancement without the jury finding the underlying conduct as fact, would render the Court's enhancement unconstitutional. More jury inclusion can, therefore, be done.

Nevertheless, the Court is obligated to follow controlling Supreme Court and Tenth Circuit precedent. See, e.g., Zamora v. Wells Fargo Home Mortg., 831 F.Supp.2d 1284, 1305 (D.N.M.2011) (Browning, J.)(“While the Court realizes that its decision . . . may in some ways be unfair and unduly harsh . . ., the Court is bound to follow binding precedent from the Tenth Circuit.”). 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. See Shannon v. United States, 512 U.S. at 579 (“It 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.'” (quoting Rogers v. United States, 422 U.S. at 40)); United States v. Parrish, 925 F.2d at 1299 (“We hold a jury instruction about mandatory minimum sentences was properly omitted because the offenses do not specifically require jury participation.”); United States v. Greer, 620 F.2d at 1384 (“The authorities are unequivocal in holding that presenting information to the jury about possible sentencing is prejudicial. Breach of this standard has often been grounds for reversal.”).

LAW REGARDING RULE 410 WAIVERS

Generally, evidence of a guilty plea or statements made in plea negotiations are inadmissible. See Fed.R.Evid. 410. Accord United States v. Mitchell, 633 F.3d 997, 1002 (10th Cir. 2011)(“As a general matter, evidence of a guilty plea or statements made in plea negotiations are inadmissible.”). Rule 410 provides:

Pleas, Plea Discussions, and Related Statements

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

Fed. R. Evid. 410.

The Supreme Court, in United States v. Mezzanatto, addressed a challenge to a waiver that allowed the United States to use the defendant's statements during plea negotiations to impeach any contradictory testimony that could arise if the case proceeded to trial. See 513 U.S. 196, 198 (1995)(Thomas, J.). The Supreme Court held that, “absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable.” 513 U.S. at 210. The Supreme Court stated that while there “may be some evidentiary provisions that are so fundamental to the reliability of the factfinding process that they may never be waived without irreparably ‘discredit[ing] the federal courts.' . . . enforcement of agreements like respondent's plainly will not have that effect.” United States v. Mezzanatto, 513 U.S. at 204 (quoting 21 C. Wright & K. Graham, Federal Practice and Procedure § 5039, pp. 207-208 (1977))(alteration in United States v. Mezzanatto). Instead, the Supreme Court noted that admitting the plea statements for impeachment purposes enhanced the truth-seeking function of trials and would result in more accurate verdicts. See United States v. Mezzanatto, 513 U.S. at 204 (“The admission of plea statements for impeachment purposes enhances the truth-seeking function of trials and will result in more accurate verdicts.”). In so holding, the Supreme Court rejected the following arguments that rule 410 should be unwaivable: (i) that rule 410 must be enforced to guarantee a fair procedure; (ii) that waivability would undermine the goal of voluntary settlement; and (iii) that waivability would invite prosecutorial reaching and abuse. See United States v. Mezzanatto, 513 U.S. at 20410. A three-justice concurrence advocated that courts should narrowly construe the holding's scope and emphasized that the case dealt only with an impeachment waiver. See United States v. Mezzanatto, 513 U.S. at 211 (Ginsburg, J., concurring).

In United States v. Mitchell, however, the Tenth Circuit extended the Supreme Court's reasoning in United States v. Mezzanatto to case-in-chief waivers. See United States v. Mitchell, 633 F.3d at 998. There, the Tenth Circuit upheld the following provision, in which the defendant agreed:

[I]f I withdraw my plea of guilty, I shall assert no claim under the United States Constitution, any statute, Rule 410 of the Federal Rules of Evidence, Rule 11(f) of the Federal Rules of Criminal Procedure, or any other federal rule, that the defendant's statements pursuant to this agreement, or any leads derived therefrom, should be suppressed or are inadmissible at any trial, hearing, or other proceeding.

United States v. Mitchell, 633 F.3d at 999. The Tenth Circuit commented: “We see no analytical distinction between Rule 410's application to impeachment waivers and case-in-chief waivers. The same reasoning for the former compels the latter.” 633 F.3d at 1004. It further explained its decision and stated: “Even if the district court determines a guilty plea should be withdrawn, a waiver of Rule 410 only means a trial will contain more evidence -- both the evidence of the original guilty plea and evidence the plea was withdrawn.” 633 F.3d at 1005 (emphasis added). The Tenth Circuit noted that its conclusion was in line with the other circuits who have considered expanding United States v. Mezzanatto's rationale. See United States v. Mitchell, 633 F.3d at 1006 (citing United States v. Sylvester, 583 F.3d 285, 289 (5th Cir. 2009); United States v. Young, 223 F.3d 905, 910-11 (8th Cir. 2000); United States v. Burch, 156 F.3d 1315, 1321 (D.C. Cir. 1998)). The Tenth Circuit also stated that United States v. Mezzanatto's facts supported its decision, because the defendant in that case received only an opportunity to discuss cooperation with the United States, while the United States made promises to Mitchell in the plea agreement. See United States v. Mitchell, 633 F.3d at 1006. Before reaching the rule 410 question, the Tenth Circuit determined that the defendant's guilty plea was knowing and voluntary. See United States v. Mitchell, 633 F.3d at 1001. Although the district court noted that the defendant's counsel may have exerted undue influence, the Tenth Circuit concluded that his counsel's influence did not render the plea involuntary. See United States v. Mitchell, 633 F.3d at 1002.

The Tenth Circuit's analysis in United States v. Mitchell began with its determination that the plea agreement was enforceable. See 633 F.3d at 1002. Although the Tenth Circuit stated at the outset that it was considering whether the rule 410 waiver was knowing and voluntary, it analyzed the plea as a whole instead. See United States v. Mitchell, 633 F.3d at 1002 (“Based on a careful review of the record, we agree with the district court that Mitchell's plea was knowing and voluntary.”). The United States Court of Appeals for the District of Columbia Circuit similarly analyzed the validity of the rule 410 waiver in the context of the validity of the plea as whole. See United States v. Burch, 156 F.3d at 1322. The D.C. Circuit commented:

Appellant's specific contention that he involuntarily waived the protections of Rules 11(e)(6) and 410 derives from his broader claim that he did not enter into the plea agreement voluntarily. He makes no attempt to deconstruct the plea agreement into individual components, nor to claim that acceded to a particular provision involuntarily, independent of his intention with his respect to the entire plea. Therefore, we can only review whether his waiver was knowing and voluntary through examining, as the trial court did, the nature of the plea agreement that subsumes it.

United States v. Burch, 156 F.3d at 1322 n.5.

In United States v. Jim, 839 F.Supp.2d 1157 (D.N.M. 2012)(Browning, J.), affd, 786 F.3d 802 (10th Cir. 2015), the Court, after allowing the defendant to withdraw his guilty plea, denied the defendant's motion to exclude statements he made in the plea agreement and during the plea colloquy, because the defendant waived his rights under rule 410 when he entered the plea agreement. See 839 F.Supp.2d at 1158. The plea agreement stated:

Except under certain circumstances where the Court, acting on its own, fails to accept this plea agreement, the Defendant agrees that, upon the Defendant's signing of this plea agreement, the facts that the Defendant has admitted under this plea agreement as set forth above, as well as any facts to which the Defendant admits in open court at the Defendant's plea hearing, shall be admissible against the Defendant under Federal Rule of Evidence 801(d)(2)(A) in any subsequent proceeding, including a criminal trial, and the Defendant expressly waives the Defendant's rights under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 with regard to the facts the Defendant admits in conjunction with this plea agreement.

839 F.Supp.2d at 1172. The defendant argued that the waiver of his rights under rule 410 was unconstitutional, but the Court disagreed, noting the similarity of the defendant's waiver with the waiver that the Tenth Circuit upheld in United States v. Mitchell. See 839 F.Supp.2d at 1172. The defendant then argued that, because his attorney at the time he pled guilty was missing half of the photographs taken at the scene, he did not have all the evidence and pled guilty involuntarily; although he raised the issue in terms of voluntariness, the Court explained that voluntariness “ordinarily deals with claims that the plea was coerced,” which the defendant did not allege. 839 F.Supp.2d at 1178. The Court instead analyzed the defendant's argument in terms of whether he knowingly pled guilty; the Court noted that the defendant did not argue that the lack of evidence affected his understanding of “‘what the plea connotes and of its consequence,' the understanding necessary to enter a knowing plea.” 839 F.Supp.2d at 1179 (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)). The Court reviewed its reasons for previously allowing the defendant to withdraw his guilty plea, including a defect in the plea colloquy in which the magistrate judge “never mentioned the word ‘trial,'” and the defendant said he did not know he was waiving his right to proceed to trial; this defect cast doubts on whether the defendant knowingly and voluntarily pled guilty, and led the Court to find a “fair and just reason” to permit the defendant to withdraw his guilty plea. 839 F.Supp.2d at 1180 (quoting United States v. Jim, No. CR 10-2653, 2011 WL 6013093, at *12 (D.N.M. November 22, 2011)(Browning, J.). The Court concluded, however, that “the evidence in favor of a knowing and voluntary plea outweighs considerably the evidence of an unknowing plea, and is more weighty and more credible. In other words, [the defendant] has not met his burden of presenting an ‘affirmative indication' that the plea was not knowing and voluntary.” 839 F.Supp.2d at 1181. Further, the defendant did not raise these arguments in his motion to exclude statements from the plea agreement and plea colloquy: “In the absence of argument on this issue and with the burden resting on [the defendant], the Court will not invalidate the rule 410 waiver and exclude [the defendant's] statements on this ground.” 839 F.Supp.2d at 1185. As to the waiver's scope, the Court determined that, because the waiver to which the defendant stipulated permitted the United States to “use his statements in a subsequent ‘criminal trial,'” the United States could use the defendant's statements in any phase of the trial. 839 F.Supp.2d at 1186 (quoting the plea agreement).

The Tenth Circuit concluded that the Court did not err in enforcing Jim's 410 waiver. United States v. Jim, 786 F.3d at 804. The Tenth Circuit stated:

Jim's Rule 410 waiver expressly stated that it took effect at the time he signed the plea agreement. And Jim does not contend that his Rule 410 waiver was not enforceable for the reason that the district court permitted him to withdraw his guilty plea. Indeed, it would make no sense to deny the efficacy of the Rule 410 waiver just because the guilty plea was withdrawn because that would render the waiver largely meaningless and deprive the Government of the benefit of its bargain. The clearly contemplated situation where the Rule 410 waiver would have any usefulness to the Government is in precisely this situation -- where the defendant failed to carry out his side of the bargain to plead guilty and thereby forced the Government to trial.

786 F.3d at 809 (citations omitted). The Tenth Circuit asserted that the 410 waiver would not bind Jim if his “entire guilty plea was not knowing and voluntary,” 786 F.3d at 809, but Jim did not show that he entered his guilty plea and the plea agreement unknowingly or involuntarily, see 786 F.3d at 806. See United States v. Christy, No. CR 10-1534 JB, 2018 WL 502487, at *16 (D.N.M. January 19, 2018)(Browning, J.).

LAW REGARDING RULE 412 IN CRIMINAL CASES

The Court provides an overview of the law regarding rule 412, which limits the admissibility of evidence relating to a victim's sexual history. See Fed.R.Evid. 412. The Court splits its survey into two parts. First, the Court explains the law regarding rule 412 as it relates to victims' prior sexual experiences. Second, the Court describes the law regarding rule 412 as it relates to victims' chastity or virginity.

1. Law Regarding Rule 412 and a Victim's Prior Sexual Experiences.

Rule 412 of the Federal Rules of Evidence states, in relevant part:

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(2) evidence offered to prove a victim's sexual predisposition.

(b) Exceptions.

(1) Criminal Cases. The court may admit the following evidence in a criminal case:

(A) Evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was a

source of semen, injury, or other physical evidence;

(B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and

(C) evidence whose exclusion would violate the defendant's constitutional rights.

Fed. R. Evid. 412. The rule also requires the following procedure before evidence may be admitted under rule 412(b): (i) the party seeking to introduce the evidence must file a motion fourteen days before trial that specifically describes the evidence and states the party's purpose for offering the evidence; (ii) the party must notify the victim, or the victim's guardian or representative; and (iii) the Court must hold a hearing in camera to assess admissibility. See Fed.R.Evid. 412(c). Rule 412 was amended in 1994 to apply to civil cases as well.⁸

8 Until 1994, rule 412 was applicable only in criminal proceedings; plaintiffs in civil sexual-harassment suits had to rely on rule 404 if they sought to exclude evidence of past sexual behavior, arguing that it was being offered as evidence of propensity. See Ferencich v. Merritt, 79 F. App'x. 408, 414 (10th Cir. 2003)(unpublished). With the passage of the 1994 amendment, however, the Committee recognized [t]he need to protect alleged victims against invasions of privacy, potential embarrassment, and unwarranted sexual stereotyping, and the wish to encourage victims to come forward when they have been sexually molested do not disappear because the context has shifted from a criminal prosecution to a claim for damages or injunctive relief. Fed. R. Evid. 412 advisory committee's note to the 1994 amendments. “As amended in 1994, Rule 412 generally precludes evidence of an alleged victim's ‘sexual behavior' or ‘sexual predisposition' in civil and criminal proceedings involving allegations of sexual misconduct.” Ferencich v. Merritt, 79 Fed.Appx. at 414.

As the Advisory Committee, and Professors Charles Wright and Kenneth Graham, recognize, the rule has at least two underlying functions. The first function is to promote the reporting of sexual assaults and other sexual misconduct by vitiating the victim's fear that, by reporting the incident, he or she will be opening up his or her private life to be put on display through the course of discovery and at trial:

The manifest function of Rule 412 is protection of the privacy of the rape victim; this is justified in terms of fairness to her and by the instrumental argument that this will further the interests of the state by encouraging victims to report the crime and to cooperate with the prosecution of rapists.

23 Charles Alan Wright & Kenneth W. Graham, Fed. Prac. & Proc. Evid. § 5384, at 543 (1st ed. 1980). See Fed.R.Evid. 412 advisory committee's note to the 1994 amendments (“By affording victims protection in most instances, the rule . . . encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders.”). The rule's second function is more subtle: to combat the sexual stereotyping of victims, “i.e., to prevent the jury from subverting the substantive law of rape by making the guilt of the defendant turn on the jury's assessment of the moral worth of the victim.” Wright & Graham, supra § 5384, at 544. See Fed.R.Evid. 412 advisory committee's note to the 1994 amendments (“The rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process.”). It is with these two goals in mind that courts should analyze rule 412 questions.

Rule 412 is a rule of evidence, meaning that it primarily controls admissibility, as distinguished from discoverability, of certain information. Compare Fed.R.Evid. 101 (defining the scope of the Rules of Evidence), with Fed.R.Civ.P. 26(b)(defining the scope of discovery). The Advisory Committee's notes explain specific forms of evidence that rule 412 governs. Under rule 412(a)(1)'s prohibition, the Advisory Committee explains that other sexual behavior “connotes all activities that involve actual physical conduct, i.e. sexual intercourse or sexual contact.” Fed.R.Evid. 412 advisory committee's note. Furthermore, rule 412(a)(2) prohibits “evidence . . . relating to the alleged victim's mode of dress, speech, or life-style,” unless the matter is civil and rule (b)(2)'s balancing test is satisfied. Fed.R.Evid. 412 advisory committee's note. See Ferencich v. Merritt, 79 Fed.Appx. 408, 415 (10th Cir. 2003)(allowing evidence in a Title VII civil matter that a plaintiff showed her tongue ring to her supervisor, and that the supervisor interpreted the display as “flirting, because of its perceived sexual use,” because the evidence “was relevant to both the issue of whether his sexual conduct was ‘unwelcome'” and whether the plaintiff's employer knew that she was being harassed, and because the evidence's probative value substantially outweighed its prejudicial effect). Additionally, prohibited “behavior” includes “activities of the mind, such as fantasies or dreams.” Fed.R.Evid. 412 advisory committee's note. On the other hand, under rule 412(b)(1)(B), a defendant may introduce “evidence of prior instances of sexual activities between the alleged victim and the accused, as well as statements in which the alleged victim expresses an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving that specific accused” to prove that an alleged victim consented to sex with the accused. Fed.R.Evid. 412, advisory committee's note. See United States v. Ramone, 218 F.3d 1229, 1234-35(10th Cir. 2000)(finding that evidence that a victim engaged in sexual acts with inanimate objects with a defendant accused of aggravated sexual abuse of the victim involving the use of inanimate objects “squarely fits within” rule 412(b)(1)(B)'s scope of admissible evidence). Under rule 412(b)(1)(C), a court may properly admit “statements in which the victim has expressed an intent to have sex with the first person encountered on a particular occasion,” so as to protect an accused's due process and Confrontation Clause rights. Fed. R. Evid 412, advisory committee's note (citing Olden v. Kentucky, 488 U.S. 227 (1988)).

Applying these principles, the Tenth Circuit has found that a district court did not abuse its discretion or commit plain error in a rape case by excluding evidence that a victim was partially undressed in the presence of two other men, who were not defendants in the case. See United States v. Pablo, 696 F.3d 1280, 1299 (10th Cir. 2012). In United States v. Pablo, the defendant and his co-defendant were both accused of raping the victim several hours after a dance, which the three of them attended, at which, according to the defendant, the victim was partially undressed with two other men. See 696 F.3d at 1298-99. The defendant asserted that the evidence was admissible for two purposes: (i) to demonstrate that someone other than the defendant caused the victim's physical injuries; and (ii) to demonstrate the victim's level of intoxication at the time. See 696 F.3d at 1299. The Tenth Circuit explained that the evidence did not fall within rule 412(b)(1)(A)'s exception, because the defendant did not proffer that the victim engaged in non-consensual or otherwise “extremely violent sex” with other men on the night of the alleged rape, and only non-consensual or extremely violent sex could have caused the victim's vaginal injuries. 696 F.3d at 1299. Because the defendant could proffer only that the evidence would demonstrate that the victim had consensual sex with other men on the night of the alleged crime, the Tenth Circuit held that the evidence was not admissible under rule 412(b)(1)(A). See 696 F.3d at 1299. Additionally, to the extent that the defendant argued that the evidence was admissible to demonstrate the victim's level of intoxication on the night of the incident, the Tenth Circuit held that the district court properly excluded the evidence under rule 412(a). See 696 F.3d at 1299. The Tenth Circuit explained that the district court had “legitimate reasons to perceive that [defendant] Pablo sought to introduce this evidence for . . . impermissible purposes, arguing apparently that her intoxication enhanced her predisposition toward casual sex.” 696 F.3d at 1299.

In United States v. Pablo, the district court also excluded the defendant's evidence that, on the night of the rape, the victim made sexual advances toward his co-defendant, “namely, caressing his leg and penis through his pants and trying to kiss him.” 696 F.3d at 1299-1300. The defendant asserted that the victim made a sexual advance on the co-defendant “a significant period of time before the rape occurred,” while the victim and the co-defendant were riding in a car with others on the night in question. 696 F.3d at 1299-1300, 1300 n.22. The defendant and co-defendant were accused of kidnapping the victim and raping her, in a separate car, later that night. See 696 F.3d at 1284-86. On appeal, the defendant argued that the exclusion of this evidence violated his due process right to present a defense. Although the Tenth Circuit reviewed the district court's exclusion of the evidence under a plain error standard, because the defendant had not raised a 412(b)(1)(C) argument before the district court, the Tenth Circuit determined that the evidence had little probative value regarding the victim's consent, because the alleged sexual advances occurred “some time before the alleged rape and in a different location from where the rape occurred.” 696 F.3d at 1300-01. Additionally, the defendant was allowed to present other evidence at trial regarding the victim's consent, including that the victim's boyfriend became jealous of the co-defendant when the victim and the co-defendant spoke at the dance. See 696 F.3d at 1301.

The Court previously has allowed, in accordance with rule 412, limited discovery regarding victims' social history in a Title VII civil rights matter. In United States v. Board of County Commissioners of the County of Dona Ana, the Court allowed defendants accused of discrimination and sexual harassment to question the victims whether they had dated co-workers, and if they had dated co-workers, which co-workers the victims had dated. See 2010 WL 1141362, at *6. The Court did not allow the defendants to inquire into the victims' sexual relationships. See 2010 WL 1141362, at *6-7. The Court explained that a limited line of questioning regarding the victims' dating history would not violate the policy rationales underlying rule 412 and would not implicate the victims' sexual predisposition, because a dating relationship is not necessarily equated with a sexual relationship. See 2010 WL 1141362, at *5-6.

In United States v. Harry, No. CR 10-1915 JB, 2013 WL 3270986 (D.N.M. June 3, 2013)(Browning, J.), the Court excluded evidence that the victim was seen sitting beside, touching, and hugging the defendant throughout the night of her alleged rape, as well as evidence of the victim's dress. See 2013 WL 3260986, at *13. The Court concluded that this evidence's sole relevance was “to demonstrate that Doe had a sexual predisposition towards casual sex.” 2013 WL 3260986, at *13. The Court also excluded a text message sent from Harry the morning after the incident that “would inform the jury of nothing more than that Doe was flirting with Harry the night of the incident.” 2013 WL 3260986, at *16. More recently, in United States v. Begay, No. CR 14-0747 JB, 2020 WL 2514661 (D.N.M. May 15, 2020)(Browning, J.), the United States sought to prohibit evidence concerning two minor victim's sexual behavior or predisposition. See 2020 WL 2514661, at *26. The Court concluded that, because the victims were too young to legally consent, evidence of their sexual behavior with regard to the defendant was irrelevant and inadmissible. See 2020 WL 2514661, at *26.

2. Law Regarding Rule 412 and a Victim's Chastity or Virginity.

The question whether rule 412 extends to evidence concerning a victim's chastity or virginity is more fraught. Federal courts differ whether rule 412 proscribes the admission of evidence concerning a victim's chastity or virginity. The Court provides an overview of certain key federal decisions.

First, in Virgin Islands v. Jacobs, 634 F.Supp. 933 (D.V.I. 1986)(O'Brien, J.)(“Jacobs”), the Honorable David V. O'Brien, United States District Judge for the United States District Court for the District of the Virgin Islands, determined, among other things, that rule 412's “ban on sexual conduct evidence embraces evidence of the lack of it -- virginity . . .” 634 F.Supp. at 937. The defendant in Jacobs was charged with thirty-seven counts of rape, two counts of sodomy, and one count of unlawful possession of a firearm after he repeatedly had sexual intercourse with his girlfriend's 12-year-old daughter over a period of two years. See 634 F.Supp. at 935. At trial, the prosecutor asked the victim if she had ever had sex with anyone before Jacobs, to which she replied “No.” 634 F.Supp. at 935. The jury convicted Jacobs. See 634 F.Supp. at 935. Jacobs then filed a petition under 18 U.S.C. § 2255. See 634 F.Supp. at 936. In his § 2255 petition, Jacobs alleged, among other things, that the trial court erred in permitting the testimony regarding the victim's chastity, because such testimony is inadmissible under rule 412. See 634 F.Supp. at 937. Judge

O'Brien agreed with Jacobs' arguments, reasoning:

Jacobs' assertion that the ban on sexual conduct evidence embraces evidence of the lack of it -- virginity -- is correct because it is likely to provoke equally unfair prejudice. E.g., State v. Gavigan, 111 Wis.2d 150, 330 N.W.2d 571, 576 (1983). We also agree that the Rule 412 proscriptions apply equally to the Government because the language of the rule neither restricts its force to the defendant nor provides the accused with the right to rebut Rule 412 evidence introduced by the prosecution. A de jure conflict with the accused's right to confrontation would be evident if the restrictions applied solely to the defendant. No such infirmity arises when both sides are precluded from introducing such prejudicial evidence. Gavigan, supra 330 N.W.2d at 576; Johnson v. State, 146 Ga.App. 277, 246 S.E.2d 363, 365-66 (1978). But see People v. Johnson, 671 P.2d 1017, 1020 (Colo. Ct. App. 1982). We conclude, therefore, that the admission of the victim's remarks concerning her virginity was erroneous ....

Jacobs, 634 F.Supp. at 937.

Several years later, in United States v. Powell, 226 F.3d 1181 (10th Cir. 2000)(“Powell”) the United States Court of Appeals for the Tenth Circuit affirmed a district court's decision to exclude evidence regarding a victim's prior sexual experience. See 226 F.3d at 1166. Powell was charged with kidnapping for sexual gratification, contact, exploitation, and assault, after kidnapping and sexually assaulting a thirteen-year-old girl. See 226 F.3d at 1184. Evidently, Powell anticipated that the United States would offer evidence concerning the victim's sexual inexperience, and as a result, before trial he “notified the trial court of his intention to introduce evidence of Jane Doe's past sexual behavior pursuant to Rule 412(b)(1)(C), on the grounds that its exclusion would violate his constitutional rights.” 226 F.3d at 1197. Specifically, Powell indicated his intention to call two witness who would testify they had seen the victim sexually touch other men in the past. See 226 F.3d at 1197. The trial judge was inclined to permit the testimony, reasoning that it “would be something that the defendant should offer as evidence because I think the Government would be opening that door based on the way it's presenting the case.” 226 F.3d at 1197. Nevertheless, the trial judge deferred making a ruling “until he had heard [the victim's] testimony, and he warned the prosecution that ‘if it turns out that the Government has portrayed [the victim] in a way that is totally inconsistent with this incident, then I'm inclined . . . to let [the defendant] provide evidence ....” 226 F.3d at 1197. After hearing the victim's testimony, the trial judge decided to exclude the testimony regarding her prior sexual conduct, explaining: “I just don't believe that given the substance of [the victim's] testimony . . . that there's been any testimony presented that would provide a springboard or basis upon which this Court could properly allow the jury to hear the two instances of 412 evidence the defendant wishes to offer ....” 226 F.3d at 1198.

The Tenth Circuit affirmed, explaining:

In conducting this inquiry, we conclude that the trial judge's exclusion of the defendant's proffered testimony did not violate the defendant's rights under the Fifth and Sixth Amendments. Defendant sought admission of his proffered evidence on two grounds: first, “in support of his defense that [the victim] consented”; and second, “to rebut inferences that [she] was sexually naive,

innocent, and unsophisticated prior to her alleged kidnapping.” Appellant's Opening Brief, at 31; 1 R., Doc. 65. Applying the Richmond test, we conclude that the testimony proffered by the defendant is, at best, only marginally relevant. We are unpersuaded by the suggestion that facts to which the proffered witnesses would testify -- that [Jane] earlier touched men in a sexually inappropriate manner -- is relevant to a determination as to whether she consented to travel with the defendant or to having sexual contacts with him on the occasions in question here. White Buffalo, 84 F.3d at 1054. We likewise believe that the relevance of [her] alleged conduct to rebut any inference the jury may have drawn regarding her sexual naivety is too attenuated, particularly in light of Richmond's charge that we must balance the government's interest in excluding the proffered evidence against the defendant's interest in its admittance. As we noted in Ramone, 218 F.3d at 1235, Rule 412 “supports important interests implicated in sexual assault cases,” including safeguarding the victim “against invasion of privacy, potential embarrassment, and stereotyping.” Given the nature of these important governmental interests, we are unable to conclude that the defendant's interest in admitting the proffered testimony is sufficiently weighty to warrant finding a constitutional violation.

Powell, 226 F.3d at 1199 (second alteration in original).

Next, in Blue Bird, 372 F.3d 989, the United States Court of Appeals for the Eighth Circuit concluded that testimony regarding a victim's virginity was irrelevant and inadmissible under rule 412. See 372 F.3d at 995. Blue Bird was charged with sexual abuse of minor after he had sexual intercourse with a thirteen-year-old girl. See 372 F.3d at 991. At trial, the victim testified that she was a virgin before Blue Bird sexually abused her. See 372 F.3d at 991. Blue Bird appealed the admissibility of that testimony, among other testimony and evidence. See 372 F.3d at 991. The Eighth Circuit concluded that the trial court erred in allowing the testimony, explaining:

During direct examination of the minor in this case, the government elicited testimony that she was a virgin when she had sexual intercourse with Mr. Blue Bird. We note first that evidence of the prosecuting witness's virginity was irrelevant to the case. The witness's sexual proclivities were not at issue, and the government has failed to provide a convincing argument for how any legally relevant inferences could be drawn from her virginity. The testimony did not have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable.” Cf. Fed.R.Evid. 401. In addition to the fact that irrelevant evidence is not admissible, Fed.R.Evid. 402, allowing the government to suggest that Mr. Blue Bird somehow “robbed” the prosecuting

witness of her virginity is unduly prejudicial given the fact that it was not probative on any relevant issue, see Fed.R.Evid. 403.

Furthermore, testimony of the prosecuting witness's virginity is inadmissible under Federal Rule of Evidence 412. That rule prohibits the introduction of evidence of an alleged victim's prior sexual conduct in a sex offense case except in narrowly defined circumstances. See Fed.R.Evid. 412. The minor's testimony clearly does not fall into any of these categories. The text of the rule itself does not limit the prohibition on introducing such evidence to the defendant, and we do not believe that the government is exempted from its strictures. One of the purposes of the rule is to encourage the victims of sexual crimes to come forward, free from the fear that their sexual history will be gratuitously exposed in court. This policy would be undermined if the government were free to produce such evidence. We also believe that the prohibition on evidence of “sexual behavior” includes chaste sexual behavior. Cf.... Jacobs, 634 F.Supp.... [at] 937 .... If the defendant in such a case is prohibited from playing on the potential prejudices of a jury by introducing evidence of the alleged victim's promiscuity, the government should also be forbidden to play on potential prejudices by introducing evidence of the alleged victim's chastity. Cf. United States v. Duran, 886 F.2d 167, 169 (8th Cir. 1989).

Blue Bird, 372 F.3d at 995.

By contrast, in D.C. v. Hasratian, No. 14-cv-0175 JNP-EJF, 2018 WL 587865 (D. Utah January 26, 2018)(Parrish, J.)(“Hasratian”), the Honorable Jill N. Parrish, United States District Judge for the United States District Court for the District of Utah, concluded that rule 412 does not prohibit the admission of evidence concerning a victim's chastity or virginity. See 2018 WL 867865, at *2. Judge Parrish explains:

The first category of evidence described in subdivision (a)(1) does not apply to Plaintiff's virginity. The absence of sexual activity is not evidence that the “victim engaged in other sexual behavior.” The language of the second category of evidence laid out in subdivision (a)(2), however, is ambiguous as applied to evidence of a victim's virginity. The phrase “victim's sexual predisposition” can be read to mean the victim's predisposition to engage in sexual activity. It can also be interpreted to mean the victim's predisposition regarding sex. The latter construction is broad enough to include evidence of both a predisposition toward sexual activity and a predisposition not to engage in sexual activity -- i.e., virginity.

The Defendants cite a Virgin Islands criminal case to suggest that a victim's virginity should be excluded under Rule 412. [Jacobs], 634 F.Supp.... [at] 937 ....

But other courts that have interpreted similar rules of evidence have held that the virginity of a victim is not specifically prohibited, and thus should be allowed. See, e.g., Marcum v. State, 771 S.W.2d 250, 253 (Ark. 1989); People v. Johnson, 617 P.2d 1017, 1020 (Colo.App. 1983).

In the absence of any binding authority on this issue, the court looks to the advisory committee notes for Rule 412 to determine whether these notes may be of assistance in resolving the ambiguity in subdivision (a)(2). See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 509 (1989)(when the text of a rule of evidence is ambiguous, courts should “seek guidance from legislative history and from the Rules' overall structure.”). These notes clearly state that Rule 412's objectives include “safeguard[ing] the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details” as well as encouraging victims “to institute and to participate in legal proceedings against alleged offenders.” Fed.R.Evid. 412, Advisory Committee Notes, 1994 Amendments. In particular, the reasons for extending the rule to civil cases are “to protect alleged victims against invasions of privacy, potential embarrassment, and unwarranted sexual stereotyping, and . . . to encourage victims to come forward when they have been sexually molested.” Id. The advisory committee notes also specifically speak to the purpose of the “sexual predisposition” language found in subdivision (a)(2). The advisory committee remarked that this language was designed to exclude evidence “relating to the alleged victim's mode of dress, speech, or life-style” because “[a]dmission of such evidence would contravene Rule 412's objectives of shielding the alleged victim from potential embarrassment and safeguarding the victim against stereotypical thinking.” Id. The purpose of subdivision (a)(2) was to exclude evidence that “may have a sexual connotation for the factfinder.” Id.

Thus the purpose of Rule 412 in general, and subdivision (a)(2) in particular, is clear. The rule is meant to protect the alleged victim from crossexamination on subjects of questionable relevance, including past sexual behavior and sexual predisposition, such as “mode of dress, speech, or life-style.” Defendants, however, seek a reading of the phrase “sexual predisposition” that would run counter to this purpose. They interpret rule 412 as permitting the alleged perpetrator of sexual misconduct to use the rule offensively to silence the alleged victim and prevent him from producing relevant evidence regarding his virginity at the time of the sexual misconduct, which relates to the issue of damages. “But [courts] will not lightly assume that . . . ambiguous language [in a rule of evidence] means anything so inconsistent with the Rule's underlying theory.” Williamson v. United States, 512 U.S. 594, 600 (1994).

The court, therefore, interprets the phrase “sexual predisposition” in Rule 412 to refer to evidence that may suggest a predisposition toward sexual activity or that “may have a sexual connotation for the factfinder.” Fed.R.Evid. 412, Advisory Committee Notes, 1994 Amendments. Thus, evidence of Plaintiff's

virginity at the time of the sexual misconduct is not prohibited by the rule.

Hasratian, 2018 WL 587865, at *1-2.

Conversely, in United States v. Olson, No. ARMY 20190267, 2021 WL 1235923 (Army Ct. Crim. App. April 1, 2021)(“ Olson”), the United States Army Court of Criminal Appeals concluded that rule 412(a) of the Military Rules of Evidence⁹ prohibits the admission of evidence concerning a victim's virginity or chastity. See 2021 WL 1235923, at *6. Olson was charged after he sexually assaulted and penetrated an Army Specialist in Army barracks. See 2021 WL 1235923, at *1-3. At trial, the victim testified, over Olson's objection, that the assault made her feel “disgusted,” because she “did not want to lose [her] virginity like that.” 2021 WL 1235923, at *4. Two other witnesses also testified that the victim lost her virginity during the assault. See 2021 WL 1235923, at *4. During closing argument, the prosecution argued that “it is unreasonable to believe she would have consented, given the evidence in this case. They are strangers, in fact, she's a virgin. You heard how she described it. ‘I'm not a virgin anymore. This isn't how I wanted to lose my virginity.'” 2021 WL 1235923, at *4 (no citation given for internal quotation).

9 Rule 412(a) of the Military Rules of Evidence is nearly identical to rule 412(a) of the Federal Rules of evidence. It reads:

(a) Evidence generally inadmissible

The following evidence is not admissible in any proceeding involving an alleged sexual offense except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that a victim engaged in other sexual behavior;

or

(2) Evidence offered to prove a victim's sexual predisposition.

Mil. R. Evid. 412(a) (bold in original).

On appeal, the Army Court of Criminal Appeals concluded that the military judge abused her discretion permitting the testimony regarding the victim's virginity. See 2021 WL 1235923, at *4. The Army Court of Criminal Appeals explains:

We do not agree with the government's argument that the victim's virginity is not evidence of sexual predisposition. The choice not to engage in sexual intercourse is as much a sexual predisposition as someone who has particular sexual proclivities. See [Blue Bird], 372 F.3d . . . [at] 995 . . . (“[T]estimony of the prosecuting witness's virginity is inadmissible under Federal Rule of Evidence 412.”). Moreover, by its plain text, Mil. R. Evid. 412 applies equally to the government as it does to an accused. Consequently, if an accused is prohibited from presenting evidence of a victim's lack of chastity to prove consent, it stands to reason that the government should not be able to assert the victim's chastity, in and of itself, as a means to prove lack of consent. See [Bluebird], 372 F.3d at 995 (citation omitted)(“If the defendant in such a case is prohibited from playing on the potential prejudices of a jury by introducing evidence of the alleged victim's promiscuity, the government should also be forbidden to play on potential prejudices by introducing evidence of the alleged victim's chastity.”).

Olson, 2021 WL 1235923, at *5. The court also explains that, even if it had determined that rule 412 did not prohibit the admission of the testimony about the victim's virginity, it would have excluded the testimony as irrelevant or unduly prejudicial. See Olson, 2021 WL 1235923, at *5-6.

Finally, and most recently, in United States v. Pulido, No. 20-cr-0292 VMC-CPT, 2022 WL 562351 (M.D. Fla. February 23, 2022)(Covington, J.)(“Pulido”), the Honorable Virginia M. Hernandez Covington, United States District Judge for the United States District Court for the Middle District of Florida, concluded that rule 412 does not apply to evidence of a victim's chastity or virginity. See 2022 WL 562351, at *6. Pulido was charged with various sex crimes, including enticement and coercion, in connection with his sexual relationship with a fifteen-year-old. See 2022 WL 562351, at *1. Pulido met the victim, a Croatian national, online. See 2022 WL 562351, at *3. Their relationship started relatively platonically -- Pulido taught the victim how to play guitar -- but escalated to sexually explicit messages and video calls. See 2022 WL 562351, at *3. Eventually Pulido flew to Croatia and the two engaged in sexual intercourse. See 2022 WL 562351, at *3. At trial, the victim's sexual inexperience came up “several times.” 2022 WL 562351, at *4. The jury convicted Pulido, and he moved for a new trial. See 2022 WL 562351, at *3.

In determining that rule 412 does not reach evidence concerning a victim's virginity, Judge Covington summarizes Judge Parrish's opinion in Hasratian. See 2022 WL 562351, at *5-6 (citing Hasratian, 2018 WL 587865, at *1-2). Judge Covington adds:

Moreover, the gravamen of the charges in this case centered around Pulido having sex with a child who was 15 years old and Jimenez's participation in the conspiracy to transport I.G. to Florida so that Pulido could continue having sex with her. This evidence was probative of Pulido's enticement or coercion of I.G. to engage in illicit sexual activity. What's more, in light of the evidence as a whole, the Court does not believe that the probative value of the evidence elicited by the government on this point was substantially outweighed by the danger of unfair prejudice to Defendants. Accordingly, the testimony elicited by the government about I.G.'s sexual inexperience prior to meeting Pulido does not warrant a new trial.

Pulido, 2022 WL 562351, at *6. See United States v. Bindues, No. CR 22-0466 JB, 2023 WL 3230795, at *15 (D.N.M. May 3, 2023)(Browning, J.)(concluding that, “the Court joins the courts that have determined that rule 412 applies to evidence concerning a victim's virginity or chastity”).

ANALYSIS

The Court grants the Discussion of Punishment Motion, the Rule 803(4) Motion, and the Plea Statements Motion. The Court grants in part, and denies in part, the Hearsay Motion, the Omnibus Motion, the Statements Motion, and the Sexual History Motion. The Court explains these conclusions below.

I. IF AGUILAR CHOOSES NOT TO TESTIFY, AND THE ONLY GOOD-FAITH BASIS FOR A QUESTION IS AGUILAR'S PERSONAL KNOWLEDGE, THE PARTIES WILL APPROACH THE BENCH AND THE COURT WILL DETERMINE IF THE QUESTION IS PROPER BEFORE IT IS ASKED.

In the Hearsay Motion, the United States asks the Court to enter an order “prohibiting Defendant Kyle Aguilar, his counsel, and/or any defense witnesses from asking any question, introducing any evidence, or making any statement or argument, directly or indirectly, regarding information known only to Defendant in front of the jury.” Hearsay Motion at 1. The United States asserts that the Hearsay Motion states that, if the “only independent source” of information for questioning is the “defendant's knowledge,” questioning would be hearsay unless Aguilar testifies. Tr. at 10:5-8 (Marshall). The Court agrees that, if Aguilar chooses not to testify, his counsel cannot -- in effect -- testify for him in the form of witness questioning. As the Court concluded at the hearing, if Aguilar chooses not to testify, and the only good-faith basis for a question is Aguilar's personal knowledge, the parties will approach the bench, and the Court will determine if the question is proper -- i.e., that “you're not testifying for him if he's not going to take the stand.” Tr. at 10:23-24 (Court). See Tr at 9:8-10:25 (Court, Hart, Marshall). It will be Aguilar's duty to explain the good-faith basis for his questioning. Accordingly, the Court grants in part and denies in part the Hearsay Motion, because, although the Court does not impose a categorical blanket exclusion of “any question, . . . any evidence, or . . . any statement or argument, . . . regarding information known only to Defendant,” the Court orders the parties to approach the bench during trial to explain the good-faith basis for the questioning. Hearsay Motion at 1.

II. THE COURT PROHIBITS IMPROPER STATEMENTS REGARDING THE UNITED STATES' BURDEN OF PROOF, SUCH AS MISSTATEMENTS ABOUT THE MEANING OF “GUILT BEYOND A REASONABLE DOUBT”.

In the first section of the United States' Omnibus Motion, the United States requests that the Court “prohibit improper statements of the United States' burden of proof.” Omnibus Motion at 1. Although “[a]rguments of counsel which misstate the law are subject to objection and to correction by the court,” Boyde v. California, 494 U.S. 370, 384 (1990)(Rehnquist, C.J.), a better course is to avoid misstatements in the first place. Should Aguilar evoke and discuss the beyond-a-reasonable-doubt standard, he must closely hew to the formulation that the United States Court of Appeals for the Tenth Circuit's pattern instruction provides:

The government has the burden of proving the defendant guilty beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. It is only required that the government's proof exclude any “reasonable doubt” concerning the defendant's guilt. A reasonable doubt is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

Criminal Pattern Jury Instruction Committee of the United States Court of Appeals for the Tenth Circuit, Criminal Pattern Jury Instruction 1.05, at 10 (PRESUMPTION OF INNOCENCE - BURDEN OF PROOF -- REASONABLE DOUBT)(2021 ed., updated 2023). As the comment to the Tenth Circuit's pattern instructions provides, parties should avoid formulations which define reasonable doubt in terms of “substantial doubt” in conjunction with “an abiding conviction of the defendant's guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs.” Tillman v. Cook, 215 F.3d 1116, 1126 (10th Cir. 2000). See Victor v. Nebraska, 511 U.S. 1, 24 (1994)(Ginsburg, J., concurring)(suggesting a fundamental difference between decisions people normally make and jury decisions). In sum, the Court prohibits misstatements about the beyond-a-reasonable-doubt standard and therefore grants that portion of the Omnibus Motion. See Tr. at 3:3-12 (Court, Hart, Marshall)

III. THE COURT PRECLUDES STATEMENTS ABOUT PRE-TRIAL RULINGS AND/OR PLEA NEGOTIATIONS IN THE PRESENCE OF THE JURY.

In the Omnibus Motion's next portion, the United States moves the Court to “bar counsel from, while the jury is present, introducing evidence, making any statement, or asking any questions about the contents of, or rulings on, any pre-trial motions.” Omnibus Motion at 3. Aguilar does not oppose this portion of the Omnibus Motion. See Omnibus Response at 1. Accordingly, the Court grants this portion of the United States' Omnibus Motion. See Tr. at 3:1217 (Court, Hart)

IV. THE COURT DOES NOT EXCLUDE ALL EVIDENCE OF DOE'S ALLEGED PRIOR DRUG AND ALCOHOL USE, BUT ORDERS THE PARTIES TO APPROACH THE BENCH IF AGUILAR SEEKS TO QUESTION DOE ABOUT THESE SUBJECTS.

In the Omnibus Motion's final section, the United States “moves this Court to exclude any reference to prior bad acts of Jane Doe from voir dire, opening statement, witness examinations or otherwise injecting the issue into trial.” Omnibus Motion at 3. Citing rule 404(a) of the Federal Rules of Evidence and related case law, the United States avers that “the introduction of evidence of a person's character to prove that the person acted in conformity therein on a particular occasion” is generally prohibited. Omnibus Motion at 3 (citing Fed.R.Evid. 404(a); Old Chief v. United States, 519 U.S. 172, 181 (1997); United States v. Shepherd, 739 F.2d 510, 513 (10th Cir. 1984); United States v. Smalls, 752 F.3d 1227, 1237 (10th Cir. 2014)). The United States does not state -- with any great specificity -- what “prior bad acts” it wishes to keep out of this case, stating that “[a]ny discussion of Jane Doe's alcohol or potential drug use is prohibited,” because such evidence “would prejudice the jury against Doe.” Omnibus Motion at 5 (citing United States v. Commanche, 577 F.3d 1261, 1269 (10th Cir. 2009)).

Aguilar contends that a prohibition of this nature is overbroad, arguing that “[i]mpeachment of a witness that abuses alcohol is permissible if the alcohol use bears on impairment of memory or perception during the time at issue,” and that the “same is true for the Government's request related to drug abuse.” Omnibus Response at 2-3. The Court agrees with Aguilar that there may be appropriate uses of Doe's alleged drug or alcohol use in the trial, and that barring all such evidence -- in a broad, blanket manner -- is inappropriate. At the hearing, Aguilar suggested that he would approach the bench if he seeks to use prior bad evidence for a proper purpose, and the Court agreed this was a good suggestion: “I guess I'm reluctant to bar the defendant from in any way referencing the . . . alleged victim's, alcohol potential drug use. I think Mr. Hart has a good suggestion that if they're going to go into it, approach the bench, and let's see where we are.” Tr at 8:8-13 (Court). Some evidence of Doe's past alcohol and drug use, the Court stated, might “go to credibility and impeachment of the witness.” Tr at 8:23-24 (Court). Accordingly, this portion of the Omnibus Motion is denied. The Court does not exclude all evidence of Doe's alleged prior drug and alcohol use, but orders the parties to approach the bench if Aguilar seeks to question Doe about these subjects.

V. THE COURT PROHIBITS DISCUSSION OF PUNISHMENT OR SENTENCING AT TRIAL.

Next, the United States “requests this Court enter an order prohibiting defense counsel from mentioning to the jury, on direct or cross-examination or in argument,” any of the punishment or sentencing ramifications of his case. Discussion of Punishment Motion at 1. In response, Aguilar “recognizes that both the Tenth Circuit and Supreme Court of the United States have issued opinions foreclosing the introduction of evidence of potential penalties,” but states that sound originalist analysis “calls into doubt these cases.” Discussion of Punishment Response at 1-2. As the Court's discussion above indicates, see Law Regarding Jury Nullification, supra, at 21-45, the Court is very sympathetic to Aguilar's arguments, which the Court believes the historical evidence regarding the jury's core function in the criminal system supports. Properly understood, the jury's role is greater than answering narrow factual questions. See Daniel Epps & William Ortman, The Informed Jury, 75 Vand, L. Rev. 823, 829-255 (2022). The Court, for its part, has expressed this view many times. See, e.g., United States v. Beckner, No. CR 15-2218 JB, 2024 WL 2880613, at *42 (D.N.M. June 7, 2024)(Browning, J.); United States v. Woody, 336 F.R.D. 293, 355 (D.N.M. 2020)(Browning, J.); United States v. Young, 403 F.Supp.3d 1131, 1155-56 (D.N.M. 2019)(Browning, J.); United States v. Baker, 342 F.Supp.3d 1189, 1214-34 (D.N.M. 2018)(Browning, J.); United States v. Edwards, 266 F.Supp.3d 1290, 1312-31 (D.N.M. 2017)(Browning, J.); Epps & Ortman, supra, at 834 (“For Judges Jack Weinstein and James Browning, the historical role of the jury was decisive. Each penned detailed historical tracts in the Federal Supplement (in Browning's case, repeatedly), aiming to demonstrate that Founding-era juries understood the consequences of their verdicts.” (citing United States v. Woody, 336 F.R.D. at 311-17; United States v. Young, 403 F.Supp.3d at 1133)). Nevertheless, the Court is bound to follow clear precedent from the Tenth Circuit and from the Supreme Court, which currently holds that juries may not hear this information. See Shannon v. United States, 512 U.S. at 579; United States v. Courtney, 816 F.3d 681, 686 (10th Cir. 2016). Accordingly, the Court grants the Discussion of Punishment Motion.

VI. THE COURT WILL ALLOW THE UNITED STATES TO INTRODUCE STATEMENTS THAT AGUILAR MADE TO CHAVEZ ON FEBRUARY 17, 2017, BUT THE COURT WILL NOT ALLOW THE UNITED STATES TO INTRODUCE ANY STATEMENTS THAT RELATE TO AGUILAR'S OCTOBER 12, 2017, ALLEGED REFUSAL TO TAKE A POLYGRAPH TEST, AS THOSE STATEMENTS BEAR ON HIS CONSTITUTIONAL RIGHT AGAINST SELFINCRIMINATION.

In the Statements Motion, the United States “requests that the Court allow the United States to present testimony about what Defendant told another witness and to BIA Agent Frank Chavez as a statement by a party opponent,” and “respectfully requests that this Court issue a pretrial ruling on the admissibility of the evidence described in this notice.” Statements Motion at 1. Although the Statements Motion does not identify these statements with specificity, at the hearing, the United States asserted that it seeks to admit two different statements: (i) Aguilar's February 17, 2017, statement to Chavez; and (ii) Aguilar's October 12, 2017, statement on a day in which “[h]e initially agreed to do a polygraph examination with the FBI examiner,” but did not end up taking the examination. Tr at 13:22-23 (Marshall). At the hearing, the Aguilar agreed that the first of these statements is admissible as rule 801(d)(2)(A) non-hearsay. See Tr. at 15:17-24 (Court, Hart). Admitting this statement requires, however, an evidentiary foundation that shows that the statements are what they purport to be. See United States v. DeLeon, 287 F.Supp.3d at 1257.

The second statement -- related to the polygraph examination -- is more complex. As an initial matter, neither the Statements Motion, nor the Statements Response, contains any description or transcript of Aguilar's statements to law enforcement on October 12, 2017. Nor is there any description of the circumstances surrounding the statements. Nevertheless, Aguilar argues that, to the extent that these statements concern Aguilar's refusal to speak to law enforcement, they are an “improper[] comment on his silence.” Tr. at 16:11-20 (Hart). Indeed, the Fifth Amendment “forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 615 (1965). The Tenth Circuit has acknowledged, however, that “[t]he fine line between what is permissible argument in this area is not always bright.” Runnels v. Hess, 653 F.2d 1359, 1362 (10th Cir. 1981). “[P]rosecutorial statements implying guilt or challenging credibility . . . do not automatically call for reversal of the conviction,” but statements “relating to an accused's failure to testify . . . normally do.” Runnels v. Hess, 653 F.2d at 1362. In the Tenth Circuit, to determine which side of the line a particular comment falls, “the test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). See United States v. Christy, 916 F.3d 814, 830 (10th Cir. 2019)(applying Knowles v. United States's test).

Tenth Circuit case law does not determine definitively whether a prosecutor's comment on a defendant's refusal to take a polygraph test is always an impermissible comment on his or her silence in violation of the Fifth Amendment. A finding of unconstitutionality in this context is fact-specific: “To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled.” Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt Cnty., 542 U.S. 177, 189 (2004). As the Tenth Circuit has noted, “[t]here is no doubt that answering questions during a polygraph examination involves a communicative act which is testimonial.” United States v. Von Behren, 822 F.3d 1139, 1144 (10th Cir. 2016). Depending on the circumstances, moreover, polygraph communications also may be incriminating and compelled. See United States v. Von Behren, 822 F.3d at (concluding a Fifth Amendment violation where a defendant on supervised release was threatened with revocation if he did not answer incriminating questions during a polygraph). See also United States v. Rivas-Macias, 537 F.3d 1271, 1278-79 (10th Cir. 2008)(Baldock, J.)(“[W]e will uphold an individual's invocation of the privilege against self-incrimination unless it is ‘perfectly clear, from a careful consideration of all the circumstances in the case,' that the witness ‘is mistaken' and his answers could not ‘possibly have' a ‘tendency to incriminate.'” (quoting Hoffman v. United States, 341 U.S. 479, 488 (1951))); United States v. Young, 347 F.Supp.3d 747, 788 (D.N.M. 2018)(Browning, J.)(“[W]hether a statement is made in response to a question reasonably likely to elicit an incriminatory response is a fact specific inquiry”), affd, 99 F.4th 1136 (10th Cir. 2023), as corrected (May 24, 2023). Although making assessments regarding danger of self-incrimination and compulsion is difficult in the abstract, in many scenarios, the Court believes that refusal to submit a polygraph examination infringes on an individual's Fifth Amendment protections. The United States Court of Appeals for the Eleventh Circuit states: “[A] person may not be compelled to submit to a polygraph examination,” and, “[a] natural corollary to that rule is that a defendant's refusal to submit to a polygraph examination cannot be used as incriminating evidence and generally is inadmissible as well.” Garmon v. Lumpkin Cnty., Ga., 878 F.2d 1406, 1410 (11th Cir. 1989)(Vance, J.).

Accordingly, at this stage, the Court excludes any discussion of Aguilar's decision to decline taking a polygraph examination. As the Court stated on the record at the hearing, it will “cut . . . off” the testimony when it reaches any discussion of the polygraph examination:

I don't want any mention of polygraph. I don't think that helps anything. That's just going to stir up the jury as to - once we throw that word out there, they're going to go: What was the result? So I think keep the word polygraph out. Coach your witnesses. You lead them through there -- if there are any pitfalls -- so the word doesn't come out, and stop the story right where he declines to take the polygraph.

Tr. at 18:21-19:4 (Court). As a result, the Court grants in part and denies in part the Statements Motion.

VII. PURSUANT TO RULE 803(4)'S EXCEPTION TO THE RULE AGAINST HEARSAY, THE COURT ALLOWS DR. UNZICKER TO TESTIFY AS TO STATEMENTS THAT DOE MADE TO HIM.

Next, the Rule 803(4) Motion asks the Court for a ruling admitting “testimony from Eric Unzicker, M.D., a physician with Indian Health Services, regarding statements Jane Doe made to this medical provider during his medical examination of Jane Doe regarding the subject sexual abuse committed by the Defendant.” Rule 803(4) Motion at 1. Specifically, the United States seeks to admit the following statement from Dr. Unzicker's report:

When queried further about any inappropriate touch, she affirmed that s/o at home has touched her and eventually stated this was one of her uncle Jonathan's brothers who lives in the home and named the individual. Said this has happened more than one time, but happened for the first time with the past few weeks. Described this person as coming home intoxicated then getting in to [sic] bed w/ her and touching her inappropriately.

Rule 803(4) Motion at 2 (quoting Pueblo of San Felipe, Health Clinic Report at 2 (dated February 12, 2017), filed December 18, 2023 (Doc. 145-1)(“Health Clinic Report”)). Aguilar agrees that all but the final sentence of this statement is admissible under rule 803(4)'s exception to the rule against hearsay as a statement made for medical diagnosis or treatment. See Rule 803(4) Response at 1. Aguilar contends, however that the final sentence contains references that “are not necessary or even rationally related to [Doe]'s medical treatment,” and thus the Court should exclude that sentence's reference to Aguilar's alleged intoxication. Rule 803(4) Response at 1.

The Court concludes that all of Doe's statements as described in the Health Clinic Report fall under rule 803(4)'s scope, as they are “reasonably pertinent to diagnosis or treatment” and describe Doe's “medical history; past or present symptoms or sensations; their inception; or their general cause.” Fed.R.Evid. 803. See United States v. Joe, 8 F.3d at 1493. Alcohol use by adults in a child's home may be relevant to a physician's understanding of the child's safety and general emotional well-being. In United States v. Joe, the Tenth Circuit states that physicians treating children “must be attentive to treating the child's emotional and psychological injuries,” and thus, although identity of an individual responsible for injuries is generally not admissible under rule 803(4), identification of an alleged perpetrator is admissible in child abuse cases. See United States v. George, 960 F.2d 97, 99 (9th Cir. 1992)(“Sexual abuse involves more than physical injury; the physician must be attentive to treating the victim's emotional and psychological injuries ....”). Applying this same logic, the Court concludes that an alleged perpetrator's intoxication is likewise relevant to the physician's understanding of the child's safety in the home and general emotional well-being. As the Court stated on the record at the hearing: “I think there is enough tie to modern medical examinations where they talk to you about safety in the home . . . that statement is relevant to medical care.” Tr. at 30:4-7 (Court). The Court therefore grants the Rule 803(4) Motion.

VIII. THE COURT PROHIBITS, PURSUANT TO RULE 412, ANY EVIDENCE OFFERED TO PROVE THAT DOE ENGAGED IN OTHER SEXUAL BEHAVIOR OR HAS A SEXUAL PREDISPOSITION, BUT ALLOWS EVIDENCE RELATED TO DOE “BEING OUT ALL NIGHT” THE EVENING BEFORE THE SEXUAL ABUSE REPORTING WHICH LED TO AGUILAR'S PROSECUTION.

In the Sexual History Motion, the United States requests that the Court “issue an order prohibiting Defendant from introducing any evidence related to the victim's, Jane Doe's, sexual history or any prior allegations of sexual abuse in this case, in violation of Federal Rules of Evidence 401, 403, and 412.” Sexual History Motion at 1. Specifically, the United States seeks an order prohibiting Aguilar from introducing evidence or cross-examining Doe about: “1) any sexual abuse disclosed by Jane Doe regarding a juvenile male, prior to this instant case; [and] 2) any reference to any other sexual and/or romantic relationship Jane Doe has been involved in prior to and since the incidents in this case.” Sexual History Motion at 2-3. Aguilar states that he has “zero intention of asking whether she was assaulted, whether she engaged in any sexual activity, whether - you know anything related to that itself.” Tr. at 45:24-25:2 (Hart). The Court agrees that rule 412 -- which generally prohibits “evidence offered to prove that a victim engaged in other sexual behavior; or . . . evidence offered to prove a victim's sexual predisposition,” Fed.R.Evid. 412(a) -- keeps out evidence of Doe's other sexual behavior regarding the juvenile male or anyone else.

Aguilar opposes the Sexual History Motion, however, because he argues that its reference to “any evidence related to” Doe's sexual history is overbroad. Sexual History Motion at 1. See Sexual History Response at 2. Specifically, as Aguilar explained at the hearing, he seeks to introduce evidence of a prior incident in which Doe was “gone from the home without permission for a long period of time,” Tr. at 45:16-46:6 (Hart), and this incident is “related to” Doe's previous alleged incident of sexual abuse with the juvenile male, Sexual History Motion at 1. Aguilar, however, does not seek to introduce evidence of the alleged sexual abuse, only that Doe was gone for a long period of time and got in trouble with her parents for it. As Aguilar explained at the hearing, he seeks to introduce this evidence because he plans to argue that, because Doe had gotten in trouble for staying out all night on a previous occasion, she had a reason to come up with an excuse about why she had stayed out all night on the evening before the disclosure leading to this case. See Tr. at 47:6-18 (Hart)(explaining that, “[b]asically, the similarities between the two is that she's away from the home, without permission, for a long time,” and because she got in trouble the first time, “that bears on why she would lie” about what happened on the second occasion). The United States agreed with this approach, stating: “[I]f what defense is trying to do is . . . say[] that she fabricated this event because she got caught being out late at night, I think that [is]n't preclude[d by] . . . the rape shield law,” and “it could be a path for impeachment.” Tr. at 52:1116 (Hart). The Court concluded that “[i]t sounds like most of the night . . . incident will be coming in, a good chunk of it in the Government's case-in-chief. But I think that Mr. Hart . . . can get into it without getting into any prior sexual abuse.” Tr. at 53:24-54:3 (Court). Accordingly, the Court grants in part and denies in part the Sexual History Motion.

IX. PURSUANT TO RULE 410 OF THE FEDERAL RULES OF EVIDENCE, THE COURT WILL NOT ALLOW THE UNITED STATES TO USE EVIDENCE RELATED TO AGUILAR'S NOW-REJECTED PLEA AGREEMENT FOR ANY PURPOSE, WHETHER IN ITS CASE-IN-CHIEF OR AS IMPEACHMENT EVIDENCE.

Finally, in the Plea Statements Motion, Aguilar makes two related requests pursuant to rule 410(a) of the Federal Rules of Evidence: (i) that the Court “prohibit the government from using the now rejected plea agreement, the fact that he pleaded guilty, and any statements made during plea negotiations or the plea proceedings as substantive evidence in the government's case-in-chief”; and (ii) that the Court “prohibit the government from using any statements made during plea negotiations, his admission in the plea agreement, or statements made during plea proceedings for impeachment.” Plea Statements Motion at 1. Aguilar states that the United States opposes only the second of these requests. See Plea Statements Motion at 1. Aguilar's original plea agreement contains a rule 410 waiver. See Plea Agreement ¶ 14, at 6, filed November 16, 2022 (Doc. 63)(“Plea Agreement”). That waiver states:

Except under the circumstances where the Court, acting on its own, rejects this plea agreement, the Defendant agrees that, upon the Defendant's [sic] signing of this plea agreement, the facts that the Defendant has admitted under this plea agreement as set forth above, as well as any facts to which the Defendant admits in open court at the Defendant's [sic] plea hearing, shall be admissible against the Defendant under Federal Rule of Evidence 801(d)(2)(A) in any subsequent proceeding, including a criminal trial, and the Defendant expressly waives the Defendant's [sic] rights under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 with regard to the facts the Defendant admits in conjunction with this plea agreement. The Court has not acted on its own if its rejection of the plea agreement occurs after the Defendant has expressly or implicitly suggested to the Court a desire or willingness to withdraw his or he plea or not to be bound by the terms of this plea agreement.

Plea Agreement ¶ 14, at 6. Rule 410 provides:

Pleas, Plea Discussions, and Related Statements

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

Fed. R. Evid. 410. In this case, the sole source of contention about whether the Plea Agreement's waiver continues to apply is whether “the Court, acting on its own, reject[ed] th[e] plea agreement,” Plea Agreement ¶ 14, at 6, or whether Aguilar rejected the plea agreement, which would leave the rule 410 waiver in place. Having reviewed carefully the record in this case, including the prior transcripts and minute orders, the Court concludes that it rejected Aguilar's plea agreement, and thus the Plea Agreement's rule 410 waiver should not be enforced. See Draft Transcript of May 19, 2023, Hearing at 3:13-14 (taken May 19, 2023)(Court)(“I'm rejecting his plea, and the plea agreement.”). Accordingly, the Court grants the Plea Statements Motion.

IT IS ORDERED that: (i) the United States' Opposed Motion in Limine to Preclude Discussion of Information Known Only to Defendant in Front of the Jury, filed December 18, 2023 (Doc. 139), is granted in part and denied in part, because although the Court does not impose the blanket exclusion which the United States requests, if Aguilar chooses not to testify, and the only good-faith basis for a question is Aguilar's personal knowledge, the parties will approach the bench and the Court will determine if the question is proper before it is asked; (ii) the United States' Opposed Omnibus Motion in Limine, filed December 18, 2023 (Doc. 141), is granted in part and denied in part, because: (a) the Court prohibits improper statements regarding the United States' burden of proof, such as misstatements about the meaning of “guilt beyond a reasonable doubt,” (b) the Court precludes statements about pre-trial rulings and/or plea negotiations in the presence of the jury, and (c) the Court does not exclude all evidence of Doe's alleged prior drug and alcohol use, but orders the parties to approach the bench if Aguilar seeks to question Doe about these subjects; (iii) the United States' Opposed Motion In Limine to Prohibit Discussion of Sentencing or Punishment at Trial, filed December 18, 2023 (Doc. 142)(italics in original), is granted; (iv) the United States' Opposed Motion in Limine to Include Statements by Defendant, filed December 18, 2023 (Doc. 143), is granted in part and denied in part, because while the Court will allow the United States, pursuant to rule 801(d)(2) of the Federal Rules of Evidence, to introduce statements that Aguilar made to Chavez on February 17, 2017, the Court will not allow any statements that relate in any way to Aguilar's October 12, 2017, alleged refusal to take a polygraph test, as those statements bear on his Constitutional protection against self-incrimination; (v) the United States' Sealed Opposed Motion in Limine to Permit Testimony Regarding Victim's Statements Pursuant to Fed.R.Evid. 803(4), filed December 18, 2023 (Doc. 145), is granted; (vi) the United States' Sealed Motion In Limine to Preclude Improper Evidence, filed December 18, 2023 (Doc. 150)(italics in original), is granted in part and denied in part, because the Court prohibits, pursuant to rule 412, any evidence offered to prove that Doe engaged in other sexual behavior or has a sexual predisposition, but allows evidence related to Doe “being out all night” the evening before the sexual abuse reporting that led to Aguilar's prosecution; and (vii) the Defendant's Motion in Limine to Exclude Use of Plea Statements as Substantive Evidence or Impeachment, filed December 19, 2023 (Doc. 152), is granted.