514 F.3d 193 (2nd Cir. 2008), 06-1462, United States v. Pepin

Docket Nº:06-1462-cr(L), 06-2566-cr(con), 06-3284-cr(con).
Citation:514 F.3d 193
Party Name:UNITED STATES of America, Appellant, v. Humberto PEPIN, Also Known as Homberto Pepin Taveras, Also Known as Tony, Humberto Pepin Taveras, Defendant-Appellee.
Case Date:February 06, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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514 F.3d 193 (2nd Cir. 2008)

UNITED STATES of America, Appellant,


Humberto PEPIN, Also Known as Homberto Pepin Taveras, Also Known as Tony, Humberto Pepin Taveras, Defendant-Appellee.

Nos. 06-1462-cr(L), 06-2566-cr(con), 06-3284-cr(con).

United States Court of Appeals, Second Circuit.

February 6, 2008

Argued: September 6, 2007.

Appeal from orders of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) excluding (1) from the penalty phase of a capital trial, evidence of child abuse by the defendant and evidence relating to the defendant's previous conviction for child endangerment, and (2) from both the guilt and penalty phases of the trial, evidence of post-mortem dismemberment of the victims. We affirm as to the orders related to the admission of evidence of child abuse and the child endangerment conviction, but vacate as to the order barring all evidence related to post-mortem dismemberment at the guilt phase.

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David L. Lewis (Louis M. Freeman, Freeman Nooter & Ginsberg, of counsel), New York, NY, for Defendant-Appellee.

Lee J. Freedman, Assistant United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney, Peter A. Norling, Assistant United States Attorney, of counsel), Brooklyn, NY, for Appellant.

Before: WALKER, CALABRESI, and SACK, Circuit Judges.

SACK, Circuit Judge.

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The defendant, Humberto Pepin, 1 awaits trial on (1) one count of obstruction of justice, and (2) two counts of murder committed while engaged in drug trafficking. The government seeks the death penalty as to the latter.

The government proffered as evidence supporting a "non-statutory aggravating factor" of "future dangerousness," Pepin's "engage[ment] in a continuing pattern of violence," including "child abuse," for the jury to consider at the penalty phase. Notice of Intent to Seek a Sentence of Death dated October 20, 2005, United States v. Taveras, No. 04-cr-156 (E.D.N.Y.), ("Notice"), at 4, 12. The district court (Jack B. Weinstein, Judge) granted a motion by Pepin to preclude such evidence at the penalty phase on grounds that such matters were unrelated to "future dangerousness" or the crimes charged in the indictment.

The government then sought to amend its Notice to include, as a separate non-statutory aggravating factor, "moral condemnation," to be supported by the defendant's prior conviction for child endangerment and related behavior. The court concluded that "[s]ubstantively, the amendment cannot stand." United States v. Taveras, 436 F.Supp.2d 493, 502 (E.D.N.Y. 2006). All evidence the government might adduce to support the proposed factor would therefore be excluded for essentially the reasons that the same evidence had been excluded as support for a "future dangerousness" factor.

Finally, after Pepin raised the issue of the admissibility of photographs of the victims' dismembered bodies, the district court, sua sponte, issued an order precluding all evidence as to dismemberment at either the guilt phase or the penalty phase of the trial.

We affirm as to the orders related to the admission of evidence of Pepin's alleged child abuse and of his child-endangerment conviction at the penalty phase, but vacate the order barring all evidence related to dismemberment.


In a superseding indictment dated October 20, 2005, filed in the United States District Court for the Eastern District of New York, 2 Pepin was charged with, inter alia, (1) one count of obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3), and (2) two counts of murder committed while Pepin was engaged in drug trafficking, in violation of 21 U.S.C. § 848(e)(1)(A).3 If convicted on either or both of the latter two charges, Pepin is subject to a minimum sentence, under 21 U.S.C. § 848(e)(1)(A), of 20 years' imprisonment and a maximum penalty of death.4 The government seeks the death penalty.

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Because this is a capital case, the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591 et seq., provides the procedures to be employed at sentencing. The district court is required by the FDPA, among other things, to "conduct a separate sentencing hearing to determine the punishment to be imposed." 18 U.S.C. § 3593(b). The hearing will ordinarily be held "before the jury that determined the defendant's guilt." 18 U.S.C. § 3593(b)(1).

[T]he jury . . . shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

18 U.S.C. § 3593(e).

Charged Murders and Post-Homicide Conduct

In support of the charges contained in the October 20, 2005, superseding indictment, the government states that it intends to prove "through witness testimony, Pepin's statements to law enforcement officers, photographs of his victims after they were recovered, and autopsy reports and photographs," Gov't Br. at 3, the following facts:

Pepin was born in the Dominican Republic. In or about 1981, he entered the United States illegally, eventually settling in New York City. At all relevant times, he sold drugs from an apartment in the Bronx which he rented for that purpose. See id.; Written Statement of Humberto Pepin Taver[a]s to Yonkers Police Detective Geiss dated October 15, 20025 (the "Pepin Statement") (stating that the apartment was on Sherman Avenue in the Bronx).

The Rosario Killing. José Rosario was one of Pepin's sources for drugs. The two of them had an arrangement under which Rosario robbed dealers of their drugs and then supplied those drugs to Pepin. Pepin then sold them, sharing the proceeds with Rosario. Gov't Br. at 4. In or about September 1992, a Pepin associate known as "Nelo" told Pepin that Rosario had instructed him, Nelo, to kill Pepin. Id.

On or about September 17, 2002, Rosario visited Pepin's Bronx apartment where Pepin, in the presence of George Loyola, one of Pepin's drug sellers, shot Rosario several times. Pepin then ordered Loyola at gunpoint to help Pepin carry Rosario's body into the bathroom. They placed the body in the bathtub and left the bathroom. Pepin returned shortly thereafter when he heard noises suggesting that Rosario might still be alive. Pepin cut Rosario's neck so that he would bleed to death and the blood would drain from the tub. Id.

Loyola and Pepin left the Bronx apartment. Pepin went home where his girlfriend, Julia Mendez, was waiting. Pepin told Mendez that he had killed Rosario. He then ordered her to make dinner for him. Afterward, Pepin forced Mendez to come with him to the Bronx apartment, stopping en route to purchase a knife. Id.

Pepin's cousin, Apolinar Taveras, and Loyola joined Pepin at the Bronx apartment. Unable to coerce Loyola to assist him, Pepin dismembered Rosario's body by himself, using the knife he had just purchased. He placed the body parts into garbage bags. Pepin then forced Loyola to accompany Pepin to Yonkers, where

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Pepin dumped the bags. Rosario's remains were discovered soon thereafter.6 Id. at 4-5.

The Madrid Killing. More than two years later, on October 4, 1994, Pepin was arrested by Federal Drug Enforcement Administration agents following a search of another apartment that Pepin was renting. The search resulted in the seizure of drugs and Pepin's indictment in the United States District Court for the Southern District of New York on federal drug charges. Pepin was released pending trial on a bond signed by Carlos Madrid, another Pepin associate, as a surety. Id. at 6.

Sometime thereafter, Pepin and Mendez went to Madrid's home in Queens, where Pepin asked Madrid for money. Madrid gave Pepin twenty dollars, far less than Pepin had sought. On the way home, Pepin's BMW struck a guardrail. Upset, Pepin told Mendez that Madrid was "going to have to pay." Id.

By October 1995, Mendez, by then separated from Pepin, had moved into her sister's residence. Pepin and Mendez were nonetheless attempting to reconcile. On or about October 9, 1995, Pepin picked Mendez up at her sister's home, saying that he wanted to take Mendez to dinner. Instead, he drove her to his house. Id.

When they arrived, Pepin ordered Mendez into the bedroom. He told her that he was waiting for Madrid because that day Madrid was "going to pay for what he did." Id. He told her to play video games with the television sound turned up. He then left the bedroom, locking Mendez inside. Id.

Pepin had asked Madrid to the house on the pretext that he, Pepin, wanted to buy drugs from Madrid. When Madrid arrived with the drugs, Pepin brought Madrid into the bedroom to say hello to Mendez. The two men then left the room. Id. at 7. Shortly thereafter, Mendez heard several loud noises. They were, it turned out, the sounds of Pepin hitting Madrid over the head with a blunt instrument. Pepin also stabbed Madrid with a knife. The injuries Pepin inflicted on Madrid were fatal.

About fifteen minutes later, Pepin entered the bedroom and told Mendez to buy garbage bags and cleaning supplies and to avert her eyes from the kitchen area as

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she left. Mendez nonetheless looked into the kitchen as she passed and saw a pair of legs in a puddle of blood. On her return, the door leading to the kitchen was closed. Mendez returned to the bedroom. Id. at 7-8.


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