United States v. Ganadonegro

• Decision Date: 14 February 2012
• Docket Number: No. CR 09–0312 JB.,CR 09–0312 JB.
• Citation: 87 Fed. R. Evid. Serv. 896,854 F.Supp.2d 1088
• Parties: UNITED STATES of America, Plaintiff, v. Kalvest GANADONEGRO, Defendant.
• Court: U.S. District Court — District of New Mexico

854 F.Supp.2d 1088

87 Fed. R. Evid. Serv. 896

UNITED STATES of America, Plaintiff,

v.Kalvest GANADONEGRO, Defendant.

No. CR 09–0312 JB.

United States District Court,

D. New Mexico.

Feb. 14, 2012.

Kenneth J. Gonzales, United States Attorney, Jennifer M. Rozzoni, Jeremy Pena, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

Kari Converse, Brian A. Pori, Assistant Federal Public Defenders, Federal Public Defender Office, District of New Mexico, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Dismiss, filed January 3, 2012 (Doc. 228)(“Motion”). The Court held a hearing on February 2, 2012. The primary issues are: (i) whether the Court should dismiss the Superseding Indictment, filed November 9, 2011 (Doc. 201), on the basis that the multiple theories of prosecution contained in the Superseding Indictment violate Defendant Kalvest Ganadonegro's due-process rights; (ii) whether the Court should require Plaintiff United States of America to elect a single theory of criminal liability to present to the jury in the re-trial of this case; and (iii) if the Court does not dismiss the Superseding Indictment, whether the Court should permit Ganadonegro to use statements the United States made in the previous trial of this case as prior inconsistent statements or as admissions by party opponents. The Court will grant the Motion in part and deny the Motion in part. The Court will not dismiss any claims in the Superseding Indictment on the basis that the charges create the potential for due-process violations. Because cumulative punishment for both Counts 1 and 2 would result in a double-jeopardy violation, the Court will ensure that the jury instructions inform the jury that they may not convict Ganadonegro on both Counts 1 and 2. The Court will not, however, dismiss any Counts or require the United States to elect certain Counts to present at trial. Because the United States' statements in the previous trial are admissions by party opponents, the Court will permit Ganadonegro to use the one statement he has informed the Court he plans to use as evidence in the upcoming trial. Ganadonegro should not in any way mention or imply that there was a previous trial or that the statement was made to a jury. Any additional statements Ganadonegro seeks to offer from the prosecution's prior opening statement or closing argument will likewise be subject to the restrictions contained in rule 401 and 403 and must be pre-approved by the Court.

PROCEDURAL BACKGROUND

Ganadonegro went to trial on charges of intentional child abuse, charged as first-degree murder, on September 1, 2011. See Clerk's Minutes, filed September 1, 2011 (Doc. 192). The jury hung, and the Court declared a mistrial. See Jury Notes at 2–4, filed September 13, 2011 (Doc. 194). Ganadonegro represents that “only one juror voted to find Mr. Ganadonegro guilty of the charge contained in the Indictment.” See Motion to Continue Trial at 2, filed January 17, 2012 (Doc. 234). The United States represents: “Later discussion with the jurors revealed that the majority believed that the Defendant had, in fact, inflicted the fatal injuries to Q.S.” United States' Response to Motion to Dismiss Count 3, filed December 20, 2011 (Doc. 225). On October 9, 2011, the United States superseded the indictment with a new one charging three separate charges: (i) second-degree murder in violation of 18 U.S.C. § 1111; (ii) voluntary manslaughter in violation of 18 U.S.C. § 1112; and (iii) negligent child abuse resulting in death in violation of N.M.S.A.1978, § 30–6–1(D)(1) and 18 U.S.C. §§ 13 and 1153. See Superseding Indictment at 1–2.

On January 3, 2012, Ganadonegro filed his Motion seeking dismissal of the Superseding Indictment. Ganadonegro contends that the Superceding Indictment advances a theory of criminal liability which is manifestly inconsistent with the theory of guilt that United States advanced at the first trial. See Motion at 6–11. Ganadonegro argues that, in charging him with the Counts in the Superseding Indictment, the United States has acted in a fundamentally unfair manner and has deprived him of his constitutional right to due process of law. See Motion at 6–11. He argues that “the doctrine of collateral estoppel should bar a prosecutor from arguing a different theory of liability in a subsequent criminal prosecution if the government's trial theories are ‘inherently factually contradictory’ and ‘irreconcilable.’ ” Motion at 7–8. He argues that there has been no newly discovered evidence that justifies the additional Counts in the Superseding Indictment. See Motion at 10. Ganadonegro contends that, in the alternative, because the Superceding Indictment is multiplicitous, the Court should either dismiss the Superceding Indictment or require that the United States elect a single theory of criminal liability to present to a jury in the re-trial. See Motion at 11–12. Finally, if the Court chooses not to dismiss the Superseding Indictment, Ganadonegro seeks the Court's permission “to introduce portions of the Government's opening and closing arguments from the first trial which are inconsistent with any theory of guilty the Government intends to advance in this case.” Motion at 13. He contends that the statements are admissible either as prior inconsistent statements or as admissions by party opponent. See Motion at 1, 13–14.

On January 11, 2012, the United States filed its Response. See United States' Response to Motion to Dismiss [Doc. 228] (Doc. 233)(“Response to Motion to Dismiss”). The United States contends that the present theories which it intends to present at trial to the jury are not mutually inconsistent theories of guilt. See Response at 2. It notes that it has not filed a new witness list and that its presentation of evidence at the upcoming trial “will be substantially identical.” Response at 2. It asserts that its “theory remains as it has been throughout the pendency of the case: that Defendant, acting alone, killed 10–month–old Q.S. with his bare hands, by shaking her and throwing her.” Response at 3. It contends that “[t]he only difference between the allegations the government presented in the first trial and will present in the second trial will be the alleged state of mind Defendant possessed when he killed Q.S.” Response at 2–3. The United States argues that Ganadonegro's “subjective state of mind is uniquely known to Defendant and uniquely elusive to the prosecution,” and that it must prove his state of mind circumstantially. Response at 3. It notes that Ganadonegro reversed his position at trial in comparison to the statements he made to federal agents and asserted that he never shook Q.S. See Response at 3. The United States contends that “[t]his stunning reversal constitutes new evidence that independently warrants a change in theory of liability.” Response at 3. It asserts that Ganadonegro has cited distinguishable authority in support of his arguments for dismissal. See Response at 3–4. Specifically, the United States contends that the authority he cites involves: (i) an initial conviction; (ii) two different defendants; and (iii) differences in the prosecution's presentation of objective facts. See Response at 3–4. It contends that the authority upon which Ganadonegro relies deals with factually inconsistent theories as opposed to different legal theories for a prosecution. See Response at 4–5. The United States argues that Ganadonegro has not presented in sufficient detail his argument for admissibility of the prosecution's statements from the opening statement and from the closing argument in the prior trial. See Response at 6–7. It asserts that he should identify the statements he seeks to admit and provide additional justification why those statements are admissible. See Response at 6–7. Additionally, it argues that, other than the mens rea it seeks to prove, there is no inconsistency between the theories it has asserted at the previous trial and will assert at the upcoming trial. See Response at 7. The United States contends that admitting such statements will needlessly complicate the trial, including forcing the attorneys presenting the case to testify. See Response at 7. Regarding the argument on multiplicity, the United States incorporates by reference its argument in the United States' Response to Motion to Dismiss Count 3, filed December 20, 2011 (Doc. 225)(“Response to Motion to Dismiss Count 3”).

In its Response to Motion to Dismiss Count 3, the United States argues that the charged offenses in the Superseding Indictment are not multiplicitous, as they each contain elements distinct from the others. See Response to Motion to Dismiss Count 3, at 7. The United States contends that no violation of the Sixth Amendment to the United States Constitution arises from these offenses under the applicable test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See Response to Motion to Dismiss Count 3, at 7–8. It contends that, under this test, each of the statutes on which it relies to charge offenses requires proof of an additional fact that the others do not. See Response to Motion to Dismiss Count 3, at 7–8. It also asserts that the Double Jeopardy Clause does not prohibit the prosecution from proceeding on several charges against a defendant, including lesser included offenses. See Response to Motion to Dismiss Count 3, at 9. It asserts that the proper procedural solution if the jury convicts Ganadonegro on inconsistent legal theories is for the Court to vacate one of those convictions. See Response to Motion to Dismiss Count 3, at 9.

On January 31, 2012, Ganadonegro filed his Reply. See Defendant's Reply to the Government's Response to the Motion to Dismiss (Doc. 242)(“Reply”). He asserts that the United States puts forward an...