United States v. Thompson, Crim. No. 19-1610 MV-4

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. KARL THOMPSON, Defendant.
• Docket Number: Crim. No. 19-1610 MV-4
• Decision Date: 11 June 2021

UNITED STATES OF AMERICA, Plaintiff,
v.
KARL THOMPSON, Defendant.

Crim. No. 19-1610 MV-4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

June 11, 2021

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on the following Motions in Limine by the United States and Defendant Karl Thompson: (1) United States' Opposed Motion in Limine to Prohibit Discussion of Sentencing or Punishment at Trial [Doc. 191] ("Sentencing MIL"); (2) Defendant's Unopposed Motion in Limine to Exclude Hearsay [Doc. 221] ("Hearsay MIL"); (3) Defendant's Unopposed Motion in Limine to Exclude Testimony of Bruce Wilson [Doc. 224] ("Bruce Wilson MIL"); and (4) Defendant's Unopposed Motion in Limine to Allow Jurors During Voir Dire and Witnesses While They Testify to Remove Face Masks [Doc. 227] ("Face Mask MIL"). Mr. Thompson responded in opposition to the Sentencing MIL [Doc. 213] and the government filed a Reply [Doc. 233]. The government filed a Notice of Position in response to the Hearsay MIL, Bruce Wilson MIL, and Face Mask MIL [Doc. 248] stating that it did not object to the relief sought in these motions. Having carefully considered the Motions, relevant law, and being otherwise fully informed, the Court will GRANT the Sentencing MIL, GRANT the Hearsay MIL, GRANT the Bruce Wilson MIL, and GRANT IN PART the Face Mask MIL.

BACKGROUND

On April 18, 2019, four individuals allegedly robbed a Mustang convenience store of liquor

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items. Doc. 221 at 1. On June 12, 2019, a federal grand jury returned an indictment charging Karl Thompson and three others with one count of Interference with Interstate Commerce by Robbery and Violence, in violation of 18 U.S.C. §§ 1951(a) and 2, and one count of Using, Carrying, Brandishing, and Discharging a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. §§ 924(c) and 2. Doc. 13. Mr. Thompson's codefendants are Julian C. Silversmith, Aurelius Jamal Eddie, and Kevin Marquez. Id.

In December 2019, Mr. Thompson pled guilty to an information [Doc. 82] charging him with one count of Interference with Interstate Commerce by Robbery and Violence, in violation of 18 U.S.C. §§ 1951(a) and 2, and one count of Using and Carrying a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i), pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Doc. 85. However, on March 10, 2021, this Court rejected the plea agreement and Mr. Thompson elected to withdraw his guilty plea and proceed to trial. Doc. 173. On April 22, 2021, a federal grand jury returned a superseding indictment charging Mr. Thompson with the same offenses as the first indictment and an additional charge of Conspiracy to Interfere with Interstate Commerce by Robbery and Violence, in violation of 18 U.S.C. § 1951(a). Doc. 196. In April 2021, the parties began filing a series of motions in limine to address certain issues prior to trial.

DISCUSSION

I. The Sentencing Motion in Limine

The United States' Sentencing MIL requests that the Court exclude evidence related to the sentence that might be imposed if Mr. Thompson is convicted of the offenses charged. Doc. 191 at 1. The government notes that the Tenth Circuit has developed a bright line rule that "[u]nless a statute specifically requires jury participation in determining punishment, the jury shall not be

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informed of the possible penalties." Id. at 2 (citing United States v. Parrish, 925 F.2d 1293, 1299 (10th Cir. 1991), abrogated on other grounds by United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995)). The government argues that allowing discussion of possible penalties would contradict the jury instructions regularly given by this Court. Id. at 3-4 (citing Tenth Circuit Pattern Jury Instructions 1.04 at 9 ("It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy.") and 1.20 at 34 ("If you find the defendant guilty, it will be my duty to decide what the punishment will be. You should not discuss or consider the possible punishment in any way while deciding your verdict."). Because the Supreme Court has held that "[t]he jury has no sentencing function and should reach its verdict without regard to what sentence might be imposed," the government asserts that the parties should be precluded from making references to potential sentences. Id. (citing Rogers v. United States, 422 U.S. 35, 40 (1975)).

In response, Mr. Thompson recognizes that the Tenth Circuit and Supreme Court precedent prevents introduction of evidence of the potential penalties that he faces if convicted. Doc. 213 at 2. He notes, however, that the Supreme Court's recent Sixth Amendment jurisprudence requires that this precedent be reevaluated. Id. He argues that when the Sixth Amendment was drafted, it contemplated that juries would consider punitive consequences in reaching their verdict, and that recent decisions "cast considerable doubt on the prohibition of the disclosure of possible penalties evidence to the jury." Id. at 3-4. Mr. Thompson requests that the Court reconsider the prohibition on the presentation of possible penalties and allow such evidence to be presented to the jury. Id. at 8. This theoretical argument clearly contravenes existing—and controlling—precedent, however, and thus is unpersuasive.

Not only is the presentation of evidence of possible sentences to a jury prejudicial, but the Tenth Circuit has mandated that a jury is obligated to "reach its verdict without regard to what

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sentence might be imposed." United States v. Greer, 620 F.2d 1383, 1384-85 (10th Cir. 1980) (citing Rogers, 422 U.S. at 40). Unless there is an explicit statutory requirement that the jury participate in the sentencing decision, "nothing is left 'for jury determination beyond the guilt or innocence of an accused.'" Id. (quoting Chapman v. United States, 443 F.2d 917, 920 (10th Cir. 1971)); see also Parrish, 925 F.2d at 1299 ("Unless a statute specifically requires jury participation in determining punishment, the jury shall not be informed of the possible penalties."). Accordingly, the Tenth Circuit has specifically held that "it is improper to inform the jury of the defendant's possible punishment." United States v. Jones, 933 F.2d 807, 811 (10th Cir. 1991). Furthermore, the Tenth Circuit has made clear that "there is no right to jury nullification." Crease v. McKune, 189 F.3d 1188 (10th Cir. 1999) (citation omitted). Consistent with this case law, Tenth Circuit Criminal Pattern Jury Instructions 1.04 and 1.20 direct that the jury's verdict should be based "solely upon the evidence, without prejudice or sympathy," and that the jury should not discuss or consider the possible punishment when deciding the verdict. Tenth Cir. Crim. Pattern Jury Instr. 1.04 at 9, 1.20 at 34 (2021 update). Given this controlling authority, the Court is not at liberty to adopt Mr. Thompson's theory that an originalist approach to the Sixth Amendment would establish a right to instruct the jury about possible penalties. Accordingly, the United States' Sentencing MIL will be granted.

II. The Hearsay Motion in Limine

Mr. Thompson's Hearsay MIL asks the Court to exclude the introduction of hearsay statements and irrelevant evidence. Doc. 221. Specifically, as officers investigated the April 18, 2019 robbery of the Mustang convenience store, they interviewed several individuals and gathered information. Id. at 2. Additionally, during a jailhouse interview, an individual named Bruce Wilson told officers about statements made by Mr. Thompson's codefendants (specifically, Mr.

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Silversmith and Mr. Eddie) after the robbery. Id. On April 24, 2019, officers received a crime stopper tip reporting that Karl Thompson may have been involved in the incident at the Mustang Store. Id. Finally, law enforcement officers interviewed Mr. Thompson's mother, who told officers about statements made by codefendant Kevin Marquez after the alleged robbery. Id. Mr. Thompson argues that each of these statements cannot be introduced at trial because they are impermissible hearsay (out-of-court statements offered in evidence to prove the truth of the matter asserted). Id. (citing Fed. R. Evid. 801(c)). Mr. Thompson also argues that the introduction of these statements would violate his Sixth Amendment right to confront the witnesses against him under Crawford v. Washington, 541 U.S. 36 (2004). Id. at 3-4. He accordingly requests that the Court exclude hearsay statements made by Mr. Silversmith, Mr. Eddie, and Mr. Marquez to Mr. Wilson and Ms. Thompson, respectively, as...