684 F.3d 324 (2nd Cir. 2012), 11-2142-cr, United States v. Jacques

Docket Nº:11-2142-cr.
Citation:684 F.3d 324
Opinion Judge:WINTER, Circuit Judge:
Party Name:UNITED STATES of America, Appellant, v. Michael JACQUES, Defendant-Appellee.
Attorney:William B. Darrow, Assistant United States Attorney (Craig S. Nolan, Paul J. Van De Graaf, and Gregory L. Waples, Assistant United States Attorneys, on the brief,) for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Appellant. David A. Ruhnke (Jean D. B...
Judge Panel:Before: WINTER, CHIN, and DRONEY, Circuit Judges.
Case Date:July 09, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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684 F.3d 324 (2nd Cir. 2012)

UNITED STATES of America, Appellant,


Michael JACQUES, Defendant-Appellee.

No. 11-2142-cr.

United States Court of Appeals, Second Circuit.

July 9, 2012

Argued: May 31, 2012.

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William B. Darrow, Assistant United States Attorney (Craig S. Nolan, Paul J. Van De Graaf, and Gregory L. Waples, Assistant United States Attorneys, on the brief,) for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Appellant.

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David A. Ruhnke (Jean D. Barrett, Ruhnke & Barrett, Montclair, NJ, and Michael L. Desautels and Barclay T. Johnson, Office of the Federal Public Defender, Burlington, VT, on the brief), Ruhnke & Barrett, Montclair, NJ, for Defendant-Appellee.

Before: WINTER, CHIN, and DRONEY, Circuit Judges.

WINTER, Circuit Judge:

The government appeals from Judge Sessions's in limine ruling excluding certain evidence from the penalty phase of a death penalty case. After obtaining an indictment against Michael Jacques for the kidnapping, rape, and murder of a 12-year-old girl, the government filed a Notice of Intent to Seek the Death Penalty (" Notice" ). Included in the Notice, as required by the Federal Death Penalty Act, 18 U.S.C. § 3591, et seq., were allegations of aggravating factors the government proposed to put before the jury in the penalty phase that would follow a conviction. These factors included allegations of six prior rapes and an attempt to obstruct justice by influencing the testimony of a juvenile witness/victim.

In pre-trial orders, Judge Sessions struck allegations of three of the prior rapes from the Notice under 18 U.S.C. § 3593(c) and suppressed evidence of the attempt to obstruct justice as having been obtained in violation of the Sixth Amendment. The government appealed.

We affirm the exclusion of evidence of two of the alleged prior rapes, remand the third for reconsideration but leave the outcome to the district court's discretion, and vacate the exclusion of evidence of the attempted obstruction of justice. We address each issue in turn.

a) Prior Rapes

1) Relevant Facts

In the Notice, the government alleged several prior rapes by Jacques. The alleged victims included four juveniles and two adults, whom we refer to as J1-J4 and A1-A2, respectively. The district court ruled that evidence of the rape of J1 was admissible during the penalty phase. Briefly stated here, and more fully discussed infra, defendant's sexual contacts with J1 occurred over several years and were in part contemporaneous with the kidnapping/rape/murder in the present matter which is alleged to have occurred in 2008. Moreover, defendant is alleged to have used J1 to lure the murdered 12-year old to her encounter with Jacques.

The court also allowed the admission of evidence of the rape of A2 in the penalty phase. This crime occurred in 1992 and resulted in a kidnapping and rape conviction. A1 has died, and the government no longer seeks to introduce evidence with regard to her.

The court excluded evidence concerning J2, J3, and J4, and the government has appealed. We turn now to these rulings.

In January 1985, J2, a younger relative of Jacques, sought an abortion, which came to the attention of law enforcement authorities. J2 told the Vermont State Police that she was pregnant as a result of being raped by Jacques, who was then 18. Jacques admitted that he had " experimented" with J2 and was arraigned on various charges; however, the case was dismissed after the family decided not to pursue the case.

Jacques is accused of raping J3 around the same time. She was a young girl who spent the night at Jacques's residence with a younger sibling. J3 never reported this incident to the police because she feared that they would not believe her.

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Finally, Jacques is alleged in 1987 to have raped J4, another young girl, who was a friend of one of Jacques's younger siblings. The rape is alleged to have occurred after Jacques provided alcohol to her at his apartment. J4's school nurse learned of the rape and called the police. Following an investigation, Jacques was arrested and charged. After pleading guilty to lewd and lascivious conduct, he was given a three-year deferred sentence.

The district court struck the allegations concerning J2, J3, and J4 from the Notice, concluding that, because the conduct alleged was unadjudicated and over twenty years old, their probative value was outweighed by their potential prejudice.

2) Discussion

Evidentiary rulings under 18 U.S.C. § 3593(c) are reviewed only for abuse of discretion. See United States v. Fell, 531 F.3d 197, 209 (2d Cir.2008).

The government argues that the exclusion of these allegations will deprive the jury of a full picture of Jacques's personal characteristics and his past conduct as a serial rapist. The government also argues that the district court based its ruling with regard to the allegations concerning J4 on an erroneous finding of fact because those allegations were in fact adjudicated. Section 3593(c) provides that in the penalty phase of a capital case, " [i]nformation is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of ... creating unfair prejudice, confusing the issues, [or] misleading the jury." The standard for exclusion of evidence under this Section is broader than under Fed.R.Evid. 403, which allows the exclusion of relevant evidence " if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, [or] misleading the jury." (emphasis added).

Generally, " more evidence, not less, should be admitted on the presence or absence of aggravating and mitigating factors" in the penalty phase of a capital case. Fell, 531 F.3d at 219 n. 12 (emphasis in original) (quoting United States v. Fell, 360 F.3d 135, 143 (2d Cir.2004)). Nevertheless, district courts " retain the discretion to exclude any type of unreliable or prejudicial evidence." United States v. Pepin, 514 F.3d 193, 204 (2d Cir.2008) (quoting Fell, 360 F.3d at 145).

Defendant's alleged conduct toward J2, J3, and J4 is alleged to have occurred almost, or over, twenty-five years ago. Such remoteness reduces the reliability of testimony as to the events' occurrences. In the case of J2 and J3, the danger of unreliability is somewhat enhanced by the lack of a relatively contemporaneous adjudication. In the case of J4, there was an adjudication, but the resultant judgment was not for rape. There is, moreover, murkiness as to each with regard to whether, or how much, coercion was involved. Finally, the remoteness of the allegations also reduces their probative value with regard to Jacques's character because he was a youth himself at the time. Cf. Fed.R.Evid. 609(b) (suggesting that the probative weight of prior crimes used to impeach character is less reliable once significant time has passed); United States v. Figueroa, 618 F.2d 934, 942 (2d Cir.1980) (" [B]oth Rule 609 and Rule 403, which is pertinent here, oblige the trial court to assess the probative value of every prior conviction offered in evidence and the remoteness of a conviction, whatever its age, is always pertinent to this assessment." ).

Therefore, although we might well have ruled otherwise were we in the

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district court's position, we conclude that the court acted within its considerable discretion to rule that the lack of reliability of the allegations with regard to J2, J3, and J4 outweighed their probative values. 1 However, the district court based its order concerning J4 in part on the assumption that those allegations were unadjudicated. In fact, Jacques pleaded guilty to lewd and lascivious conduct in connection with his conduct with J4. We vacate the order with regard to the allegations regarding her and remand for the district court to reconsider its ruling in light of that adjudication. We add, however, that the district court would still be within its discretion to conclude that the age of these allegations and the ambiguity of the plea as to rape is sufficient to warrant their exclusion under § 3593(c).

b) Obstruction of Justice

1) Relevant Facts

Because the obstruction of justice relates to evidence of the underlying offense, we briefly set out pertinent allegations with regard to those charges.

The government alleges that in 2003 Jacques concocted a scheme to sexually abuse the then nine-year-old J1. This scheme involved making J1 believe that a fictitious organization named " Breckenridge" would kill her and her family if she did not follow the group's instructions. Jacques allegedly sent e-mail messages from two accounts seemingly owned by members of Breckenridge named " Charles" and " Eric." The e-mails told J1 that Jacques was to act as her " sexual trainer" and advised her to engage in various sex acts with Jacques. When J1 protested, she received e-mail threats that included the killing of family pets. Jacques's exploitation of J1 through " Breckenridge" continued until 2008, when J1 was 14 years old.

In May 2008, J1 received messages from Breckenridge that a 12-year-old named Brooke needed to be terminated and that J1 was to help in the termination by inviting Brooke to a party. On the morning of the party in late June 2008, Jacques and J1 picked Brooke up and drove to a convenience store about ten minutes from Jacques's home. Once there, Jacques dropped Brooke off in front of the store's surveillance camera but told her to walk to a nearby spot where they would pick her up. Jacques and J1 then allegedly left but circled back to pick Brooke up. The government alleges that Jacques then drugged, raped, and murdered Brooke.

Four days later on June 29, 2008, police discovered the emails from Eric and Charles to J1 and traced them to Jacques's...

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