United States v. Pepin, No. 06-1462 (2d Cir. 2008)
Annotate this Case
The court issued a subsequent related opinion or order on March 12, 2008.
Download PDF
06-1462-cr United States v. Pepin 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: September 6, 2007 Decided: February 6, 2008) 5 Docket No. 06-1462-cr(L), 06-2566-cr(con), 06-3284-cr(con) 6 ------------------------------------- 7 UNITED STATES OF AMERICA, 8 Appellant, 9 - v - 10 11 HUMBERTO PEPIN, ALSO KNOWN AS HOMBERTO PEPIN TAVERAS, ALSO KNOWN AS TONY, HUMBERTO PEPIN TAVERAS, 12 Defendant-Appellee. 13 14 15 ------------------------------------- 16 Before: WALKER, CALABRESI, and SACK, Circuit Judges. Appeal from orders of the United States District Court 17 for the Eastern District of New York (Jack B. Weinstein, Judge) 18 excluding (1) from the penalty phase of a capital trial, evidence 19 of child abuse by the defendant and evidence relating to the 20 defendant's previous conviction for child endangerment, and (2) 21 from both the guilt and penalty phases of the trial, evidence of 22 post-mortem dismemberment of the victims. 23 orders related to the admission of evidence of child abuse and 24 the child endangerment conviction, but vacate as to the order 25 barring all evidence related to post-mortem dismemberment. 26 We affirm as to the Affirmed in part; vacated in part. 1 2 3 DAVID L. LEWIS (Louis M. Freeman, Freeman Nooter & Ginsberg, of counsel), New York, NY, for Defendant-Appellee. 4 5 6 7 8 9 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. 10 SACK, Circuit Judge: The defendant, Humberto Pepin,1 awaits trial on (1) one 11 12 count of obstruction of justice, and (2) two counts of murder 13 committed while engaged in drug trafficking. 14 seeks the death penalty as to the latter. 15 The government The government proffered as evidence supporting a "non- 16 statutory aggravating factor" of "future dangerousness," Pepin's 17 "engage[ment] in a continuing pattern of violence," including 18 "child abuse," for the jury to consider at the penalty phase. 19 Notice of Intent to Seek a Sentence of Death dated October 20, 20 2005, United States v. Taveras, No. 04-cr-156 (E.D.N.Y.), 21 ("Notice"), at 4, 12. 22 Judge) granted a motion by Pepin to preclude such evidence at the 23 penalty phase on grounds that such matters were unrelated to 24 "future dangerousness" or the crimes charged in the indictment. 25 26 The district court (Jack B. Weinstein, The government then sought to amend its Notice to include, as a separate non-statutory aggravating factor, "moral 1 The defendant has been referred to in and by the district court as Humberto Pepin Taveras. See, e.g., United States v. Taveras, 436 F. Supp. 2d 493 (E.D.N.Y. 2006). On appeal, though, he is referred to as Humberto Pepin. We therefore use the latter name. -2- 1 condemnation," to be supported by the defendant's prior 2 conviction for child endangerment and related behavior. 3 court concluded that "[s]ubstantively, the amendment cannot 4 stand." 5 (E.D.N.Y. 2006). 6 support the proposed factor would therefore be excluded for 7 essentially the reasons that the same evidence had been excluded 8 as support for a "future dangerousness" factor. The United States v. Taveras, 436 F. Supp. 2d 493, 502 All evidence the government might adduce to 9 Finally, after Pepin raised the issue of the 10 admissibility of photographs of the victims' dismembered bodies, 11 the district court, sua sponte, issued an order precluding all 12 evidence as to dismemberment at either the guilt phase or the 13 penalty phase of the trial. 14 We affirm as to the orders related to the admission of 15 evidence of Pepin's alleged child abuse and of his child- 16 endangerment conviction at the penalty phase, but vacate the 17 order barring all evidence related to dismemberment at the guilt 18 phase. BACKGROUND 19 20 In a superseding indictment dated October 20, 2005, 21 filed in the United States District Court for the Eastern 22 District of New York,2 Pepin was charged with, inter alia, (1) 23 one count of obstruction of justice, in violation of 18 U.S.C. 24 § 1512(b)(3), and (2) two counts of murder committed while Pepin 2 Pepin was first indicted in the Eastern District on February 20, 2004. -3- 1 was engaged in drug trafficking, in violation of 21 U.S.C. 2 § 848(e)(1)(A).3 3 two charges, Pepin is subject to a minimum sentence, under 21 4 U.S.C. § 848(e)(1)(A), of 20 years' imprisonment and a maximum 5 penalty of death.4 6 If convicted on either or both of the latter The government seeks the death penalty. Because this is a capital case, the Federal Death 7 Penalty Act ("FDPA"), 18 U.S.C. § 3591 et seq., provides the 8 procedures to be employed at sentencing. 9 required by the FDPA, among other things, to "conduct a separate The district court is 10 sentencing hearing to determine the punishment to be imposed." 11 18 U.S.C. § 3593(b). 12 the jury that determined the defendant's guilt." 13 § 3593(b)(1). 14 15 The hearing will ordinarily be held "before 18 U.S.C. [T]he jury . . . shall consider whether all the aggravating factor or factors found to 3 The superseding indictment also charged Pepin with a firearm-related murder under 18 U.S.C. § 924(j)(1), but the district court granted Pepin's motion to dismiss that charge. The dismissal is not before us. 4 That statute provides in part: any person engaging in . . . an offense punishable under section 841(b)(1)(A) of this title . . . who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death. 21 U.S.C. § 848(e)(1)(A). -4- 1 2 3 4 5 6 7 8 9 10 11 12 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). 13 Charged Murders and Post-Homicide Conduct 14 In support of the charges contained in the October 20, 15 2005, superseding indictment, the government states that it 16 intends to prove "through witness testimony, Pepin's statements 17 to law enforcement officers, photographs of his victims after 18 they were recovered, and autopsy reports and photographs," Gov't 19 Br. at 3, the following facts: 20 Pepin was born in the Dominican Republic. In or about 21 1981, he entered the United States illegally, eventually settling 22 in New York City. 23 apartment in the Bronx which he rented for that purpose. 24 id.; Written Statement of Humberto Pepin Taver[a]s to Yonkers 25 Police Detective Geiss dated October 15, 20025 (the "Pepin 26 Statement") (stating that the apartment was on Sherman Avenue in 27 the Bronx). 28 29 At all relevant times, he sold drugs from an The Rosario Killing. sources for drugs. See José Rosario was one of Pepin's The two of them had an arrangement under 5 In the statement, Pepin says that Yonkers Detective Wilson Gonsalez was also present. -5- 1 which Rosario robbed dealers of their drugs and then supplied 2 those drugs to Pepin. 3 with Rosario. 4 Pepin associate known as "Nelo" told Pepin that Rosario had 5 instructed him, Nelo, to kill Pepin. 6 Pepin then sold them, sharing the proceeds Gov't Br. at 4. In or about September 1992, a Id. On or about September 17, 2002, Rosario visited Pepin's 7 Bronx apartment where Pepin, in the presence of George Loyola, 8 one of Pepin's drug sellers, shot Rosario several times. 9 then ordered Loyola at gunpoint to help Pepin carry Rosario's Pepin 10 body into the bathroom. 11 left the bathroom. 12 heard noises suggesting that Rosario might still be alive. 13 cut Rosario's neck so that he would bleed to death and the blood 14 would drain from the tub. 15 They placed the body in the bathtub and Pepin returned shortly thereafter when he Pepin Id. Loyola and Pepin left the Bronx apartment. Pepin went 16 home where his girlfriend, Julia Mendez, was waiting. 17 Mendez that he had killed Rosario. 18 dinner for him. 19 to the Bronx apartment, stopping en route to purchase a knife. 20 Id. 21 Pepin told He then ordered her to make Afterward, Pepin forced Mendez to come with him Pepin's cousin, Apolinar Taveras, and Loyola joined 22 Pepin at the Bronx apartment. Unable to coerce Loyola to assist 23 him, Pepin dismembered Rosario's body by himself, using the knife 24 he had just purchased. 25 bags. He placed the body parts into garbage Pepin then forced Loyola to accompany Pepin to Yonkers, -6- 1 where Pepin dumped the bags. 2 soon thereafter.6 3 Rosario's remains were discovered Id. at 4-5. The Madrid Killing. More than two years later, on 4 October 4, 1994, Pepin was arrested by Federal Drug Enforcement 5 Administration agents following a search of another apartment 6 On October 15, 1992, Pepin, incarcerated in the Otisville [N.Y.] Federal Correctional Facility, gave this version of the events to at least one Yonkers, New York, detective: I walked into the bedroom, when I came out of the bedroom I had a 22 cal pistol. . . . [Rosario] was still seating [sic] on the couch . . . . I told him I was going to kill him. [Rosario] started to rise up off of the couch, I then pointed the gun at him and I shot him, I think 4 times, one was in the right eye I think, one was in the neck, one in the chest, and I am not sure where the other shot went. . . . [M]yself and George [Loyola] dragged [Rosario] into the bathroom and put him in the tub. I put a cut into his neck so the blood would drain out. I then left to go to my house . . . . When I got home I ate and I told . . . Julia [Mendez] that I killed [Rosario] and that I had to go back and cut up his body. . . . Julia asked me if I needed any help. I told her that I did. I then left with [her]. . . . I bought a large knife in the hardware store which is on Sherman Ave. . . . When I got to the apartment George [Loyola] asked me if my cousin Apolinar Taver[a]s could help us. I told him yes and for him to get him. . . . A short time later we all cut up [Rosario] who was in the tub. I know how to cut up a body because in my country I worked as a butcher. I cut [Rosario] up by the joints, I cut off his head at the neck, I cut off his arm at the shoulder, his torso, his legs, his knees. I cut him up at the joints. We then placed him into separate garbage bags, I believe it was around 4 P.M. . . . [M]yself and George [Loyola] and Apolinar . . . came back when it was dark[,] . . . drove to Yonkers and I dumped the garbage bags in a park. Pepin Statement at 1-2. -7- 1 that Pepin was renting. 2 drugs and Pepin's indictment in the United States District Court 3 for the Southern District of New York on federal drug charges. 4 Pepin was released pending trial on a bond signed by Carlos 5 Madrid, another Pepin associate, as a surety. 6 The search resulted in the seizure of Id. at 6. Sometime thereafter, Pepin and Mendez went to Madrid's 7 home in Queens, where Pepin asked Madrid for money. 8 Pepin twenty dollars, far less than Pepin had sought. 9 home, Pepin's BMW struck a guardrail. 10 On the way Upset, Pepin told Mendez that Madrid was "going to have to pay." 11 Madrid gave Id. By October 1995, Mendez, by then separated from Pepin, 12 had moved into her sister's residence. Pepin and Mendez were 13 nonetheless attempting to reconcile. 14 1995, Pepin picked Mendez up at her sister's home, saying that he 15 wanted to take Mendez to dinner. 16 house. On or about October 9, Instead, he drove her to his 17 Id. When they arrived, Pepin ordered Mendez into the 18 bedroom. 19 day Madrid was "going to pay for what he did." 20 to play video games with the television sound turned up. 21 left the bedroom, locking Mendez inside. 22 He told her that he was waiting for Madrid because that Id. He told her He then Id. Pepin had asked Madrid to the house on the pretext that 23 he, Pepin, wanted to buy drugs from Madrid. When Madrid arrived 24 with the drugs, Pepin brought Madrid into the bedroom to say 25 hello to Mendez. 26 Shortly thereafter, Mendez heard several loud noises. The two men then left the room. -8- Id. at 7. They were, 1 it turned out, the sound of Pepin hitting Madrid over the head 2 with a blunt instrument. 3 The injuries Pepin inflicted on Madrid were fatal. Pepin also stabbed Madrid with a knife. 4 About fifteen minutes later, Pepin entered the bedroom 5 and told Mendez to buy garbage bags and cleaning supplies and to 6 avert her eyes from the kitchen area as she left. 7 nonetheless looked into the kitchen as she passed and saw a pair 8 of legs in a puddle of blood. 9 the kitchen was closed. 10 11 On her return, the door leading to Mendez returned to the bedroom. Id. at 7-8. Pepin dismembered Madrid's body and placed the body 12 parts in trash bags. 13 trunk of Madrid's automobile. 14 Mendez Mendez later saw Pepin placing a bag in the Id. at 8. Pepin and Mendez left together -- Pepin driving 15 Madrid's car; Mendez driving Pepin's. Pepin dumped most of the 16 bags containing the body parts, but at least one -- with Madrid's 17 severed head inside it -- was left in the automobile, which Pepin 18 unsuccessfully attempted to burn. 19 recovered the remains. Soon thereafter, authorities Id. 20 Child Abuse Allegations 21 The government seeks to present evidence during the 22 penalty phase of Pepin's trial -- if there is one -- regarding 23 Pepin's treatment of Mendez's children. 24 According to the government, Mendez moved in with Pepin 25 in 1989, along with her son and daughter from a prior 26 relationship. At the time, the girl was eight years old. -9- Pepin 1 confined the children to a single room of their apartment, made 2 them use a bucket as a latrine, and frequently prevented Mendez 3 from providing food to them. 4 Pepin vaginally and anally raped Mendez's daughter on many 5 occasions, beat her when she informed Pepin, truthfully, that she 6 was pregnant, and carved his name into her chest using a needle. 7 Id. at 9-10. 8 9 The government also contends that On January 2, 1997, the Bronx County District Attorney's office charged Pepin with rape, sodomy, assault, 10 possession of a weapon, and endangering the welfare of a child. 11 Pepin later pleaded guilty to a misdemeanor charge of endangering 12 the welfare of a child in satisfaction of all charges against 13 him. 14 the Dominican Republic. He served nine months in prison and was then deported to 15 Id. at 10. Less than six months later, Pepin was arrested 16 attempting to re-enter the United States. 17 convicted on federal charges of illegal re-entry, bail jumping, 18 and drug trafficking. 19 wrote a letter to a Yonkers police officer admitting that he had 20 had sexual relations with Mendez's daughter but denying that he 21 did so against her will. 22 Pepin, in Otisville, to "Señor John Geiss."). 23 Id. He was subsequently While in prison on those charges, he Id.7 (citing letter, date obscure, from District Court Ruling as to Evidence of Child Abuse 7 The letter is in Spanish. The record contains copies of the original and an English translation. -10- 1 On October 20, 2005, the government filed a superseding 2 Notice of Intent to Seek a Sentence of Death, pursuant to 18 3 U.S.C. § 3593(a), in which "future dangerousness" was proffered 4 as a "non-statutory aggravating factor" as follows: 5 6 7 8 9 10 The defendant HUMBERTO PEPIN TAVERAS is likely to commit criminal acts of violence in the future that would constitute a continuing and serious threat to the lives and safety of others, as evidenced by, at least, one or more of the following: 11 a. 12 13 14 15 16 17 18 19 20 21 22 The defendant HUMBERTO PEPIN TAVERAS has engaged in a continuing pattern of violence, attempted violence, and threatened violence, including, at least, (a) the crimes charged in the Indictment, (b) the crimes for which the defendant has been previously convicted, (c) child abuse, (d) domestic abuse and (e) threatening and attempting to kill John Doe, a witness against the defendant. 23 Continuing Pattern of Violence Notice at 3-4, 11-12 (emphasis added).8 24 On February 28, 2006, the district court issued a 25 Memorandum and Order that, inter alia, excluded at the penalty 26 phase all evidence related to allegations of acts of violence and 27 abuse against the child and the adult women set forth in the 28 Notice as non-statutory aggravating factors. 29 evidence to be unduly prejudicial under Federal Rule of Evidence 30 403. 31 2006 U.S. Dist. LEXIS 7408, at *17-*18 (E.D.N.Y. Feb. 28, 2006) 32 ("Memorandum and Order on Challenges to Death Penalty") ("Taveras 33 I"). The court found the United States v. Taveras, 04-cr-156, 2006 WL 473773, at *6, The court concluded: 8 Prior versions of the Notice contained the same text. -11- 1 2 3 4 5 6 7 8 9 10 11 [F]or Rule 403 reasons and others [previously] explained orally [by the court], evidence of the aggravating factors of sexual crimes committed on a minor and a sexual assault on an adult will not be permitted. They do not relate to the homicidal characteristics which form the basis of the prosecution and they might well be overvalued in light of recent publicity on sexual assaults on children in this geographic area. Id., 2006 U.S. Dist. LEXIS 7408, at *17-*18. 12 On March 16, 2006, the court, relying on 21 U.S.C. 13 § 848(j) (repealed),9 revisited its decision excluding evidence 14 of Pepin's violence against adult women and decided to allow it. 15 But the court reaffirmed its decision to exclude evidence as to 16 child abuse, which it explained in greater detail. 17 v. Taveras, 424 F. Supp. 2d 446 (E.D.N.Y. 2006) ("Taveras II"). 18 Noting that there was a "great likelihood that defendant, if 19 convicted and spared death, will spend the rest of his life in 20 prison," id. at 463, the court viewed evidence of sexual and 21 physical abuse against minors as irrelevant to future 22 dangerousness because of the unlikelihood of his release into the 23 community, id. 24 evidence would confuse the jury, id., and, "[s]ince the 25 government bears the burden of proving these charges beyond a 26 reasonable doubt, proof would require a diversionary trial within 9 United States The court also concluded that admission of such 21 U.S.C. § 848(j) provided, in pertinent part: [I]nformation may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Id. -12- 1 a trial that would have minimal relevance to the future danger 2 posed by defendant to those with whom he is, if convicted, likely 3 to spend the rest of his life -- adult guards and male inmates," 4 id. at 463-64. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The court continued: More importantly, the evidence would be likely to so inflame the passions of the jurors as to inhibit their careful consideration of the future dangerousness factor. Wide attention to a recent spate of sexual assaults against minors would make it almost impossible for a jury to disconnect its anger at the prevalence of the crimes from the issue of future dangerousness of this defendant. Defendant's contentions that the relationship was consensual would confuse the issues by directing the jury's energies towards divining the nature of the relationship between the two rather than the need to protect society from future crimes of defendant, the basis of the future dangerousness factor. Introduction of this evidence would not produce the heightened reliability required of a capital sentence. Id. at 464. On or about March 23, 2006, the government, undaunted, 26 sought to file another superseding Notice of Intent to Seek a 27 Sentence of Death. 28 dated March 22, 2006, United States v. Taveras, No. 04-CR-156 29 (E.D.N.Y.), accompanying motion for leave to file the amended 30 Notice filed on March 23, 2006. 31 to child abuse as an indication of future dangerousness, the 32 proposed superseding Notice set forth as a separate non-statutory 33 aggravating factor Pepin's previous conviction for child 34 endangerment and related behavior. 35 superseding Notice added the assertion that "[b]eyond raping the Notice of Intent To Seek Sentence of Death This time, instead of adverting -13- Id. at 5-6. The proposed 1 child, the defendant repeatedly falsely imprisoned the child, 2 deprived her of food and water, and beat her. 3 the defendant carved his nickname, 'Tony,' on the child's chest." 4 Id. 5 "demonstrate[] that the defendant merits moral condemnation by 6 the community." On one occasion, These facts, the proposed superseding Notice said, 7 Id. at 6. On May 4, 2006, at a status conference, the district 8 court invoked its discretion, not under 21 U.S.C. § 848(j) 9 (repealed) as it had previously done, but under 18 U.S.C. 10 § 3593(c), which governs admissibility of evidence at the penalty 11 phase of capital trials. 12 "[i]nformation is admissible regardless of its admissibility 13 under the rules governing admission of evidence at criminal 14 trials except that information may be excluded if its probative 15 value is outweighed by the danger of creating unfair prejudice, 16 confusing the issues, or misleading the jury."10 17 decided that "[the government's] amendment is permitted but [it 18 will] be allowed no evidence on it." 19 2006, at 29. 20 21 Section 3593(c) provides, in part, that The court Hearing Transcript, May 4, The court further explained its position in an "Omnibus Pretrial Memorandum and Order" dated June 29, 2006. 10 United By contrast, Federal Rule of Evidence 403, which applies during the guilt phase, provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id. (emphasis added). The analogous language in 18 U.S.C. § 3593(c) omits the word "substantially." -14- 1 States v. Taveras, 436 F. Supp. 2d 493 (E.D.N.Y. 2006) ("Taveras 2 III"). 3 but merely reorganize them in response to this court's ruling" 4 excluding evidence as to child abuse. 5 motion to amend was procedurally "unobjectionable" because the 6 government's application was made in good faith and Pepin was not 7 prejudiced by it, id., "[s]ubstantively, the amendment cannot 8 stand. 9 court's] departure from [its] previous ruling excluding this same "The new proposed notice would not add new allegations, Id. at 502. Although the Nothing in the government's motion justifies [the 10 evidence. See [Taveras II], 424 F. Supp. 2d at 463-64. The more 11 stringent standard of admissibility provided for by title 18's 12 FDPA strengthens the basis for the ruling that this evidence is 13 inadmissible." Taveras III, 436 F. Supp. 2d at 502-03.11 14 15 District Court Ruling as to Evidence of Post-Mortem Dismemeberment 16 In Taveras III, the district court also excluded all 17 evidence of post-mortem dismemberment of the victims in both the 18 guilt and penalty phases of trial. 19 one looked at the guilt phase alone, the dismemberment evidence 20 would be permitted. 21 the narrative that the government rightly seeks to tell at the 22 guilt phase of a trial. 11 The court indicated that if "These details form part of the res gestae, Old Chief v. United States, 519 U.S. Although not entirely clear to us, it appears that the court was not denying the motion to file the amended notice. It was adhering to its earlier oral decision to permit the amendment to the Notice of Intent to Seek a Sentence of Death, but ordering all evidence as to the child endangerment conviction excluded. See Hearing Transcript, May 4, 2006, at 29. The precise characterization of the order in this regard does not, however, affect our consideration of this appeal. -15- 1 172, 187 (1997). 2 'substantially outweighed by the danger of unfair 3 prejudice . . . .' 4 But, the court ruled, any such evidence was inadmissible in the 5 penalty phase because it would "short-circuit" the process 6 "carefully choreographed" by section 3593 for determining the 7 appropriate sentence "by tending to rush the jury into an 8 emotional conclusion." 9 10 11 12 13 14 15 16 17 18 19 20 Their probative value would not be Fed. R. Evid. 403." Id. at 514. Id. at 515. "It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Florida, 430 U.S. 349, 358 (1977). The court has a duty to minimize the "risk [of] a verdict impermissibly based on passion, not deliberation." Payne v. Tennessee, 501 U.S. 808, 836 (1991) (Souter, J., concurring). Id. (brackets in original). The court then decided that despite its conclusion that 21 the dismemberment evidence would have been allowed under Federal 22 Rule of Evidence 403 if the court's concern was solely whether 23 its probative value was substantially outweighed by the danger of 24 unfair prejudice at the guilt phase of the trial, the need to 25 exclude the evidence at the penalty phase required its exclusion 26 at the guilt phase, too. 27 penalty and guilt phases, such evidence also will not be received 28 at the guilt phase." 29 "Since one jury will hear both the Id. at 515-16. Instead, the court said, it "expected" the parties to 30 "stipulate that: After killing Rosario, defendant returned home, 31 ate dinner, and then returned to the apartment with Julia Mendez. -16- 1 Defendant wrapped the body, drove it to Yonkers with Loyola, and 2 dumped it. 3 placed it in Madrid's car, drove the car to Queens, and set it on 4 fire." 5 probative force of the government's proposed evidence. 6 necessary to preserve defendant's right to capital proceedings 7 that are properly channeled and focused on the issue for which 8 the evidence is offered -- i.e., future dangerousness." 9 Reference to dismemberment during voir dire was also prohibited. 10 After killing Madrid, defendant wrapped the body, Id. at 516. "This ruling sacrifices some of the Yet it is Id. Id. 11 The government appeals from the orders excluding 12 evidence of child abuse or evidence related to the child 13 endangerment conviction from the penalty phase, and the order 14 excluding post-mortem dismemberment evidence from both the guilt 15 and penalty phases of trial. 16 the government's motion for a stay of the trial pending our 17 resolution of this appeal. On September 6, 2007, we granted DISCUSSION 18 19 I. Jurisdiction 20 We have jurisdiction to consider this appeal under 18 21 U.S.C. § 3731. 22 (2d Cir. 2004) (hearing government's challenge to pre-trial 23 evidentiary ruling on interlocutory appeal).12 12 See, e.g., United States v. Chevere, 368 F.3d 120 18 U.S.C. § 3731 provides in pertinent part: An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding -17- 1 II. Standard of Review 2 "[W]e review evidentiary rulings for abuse of 3 discretion." United States v. Sewell, 252 F.3d 647, 650 (2d 4 Cir.), cert. denied, 534 U.S. 968 (2001); see also Awadallah, 436 5 F.3d at 131 ("We review the exclusion of evidence pursuant to 6 Rule[] 403 . . . for abuse of discretion."); United States v. 7 Salameh, 152 F.3d 88, 110 (2d Cir. 1998) (per curiam) (concluding 8 that Fed. R. Evid. 403 determinations may be overturned "'only if 9 there is a clear showing that the court abused its discretion or 10 acted arbitrarily or irrationally'" (quoting United States v. 11 Valdez, 16 F.3d 1324, 1332 (2d Cir. 1994))), cert. denied sub 12 nom. Abouhalima v. United States, 525 U.S. 1112 (1999). 13 Although we have not squarely addressed the question 14 before, we see no reason to apply a different standard of review 15 to a district court s ruling that information proferred by the 16 government as evidence is inadmissible at the penalty phase of a evidence . . . in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. This statute permits the government, under certain circumstances, to mount a pre-trial appellate challenge to a district court's decision rejecting trial evidence proffered by the government. But for the statute, in the event of an acquittal, the government would have no post-trial remedy for an erroneous evidentiary ruling, however serious the error, because of the operation of the Fifth Amendment's double-jeopardy bar. See United States v. Wilson, 420 U.S. 332, 335-40 (1975). -18- 1 capital prosecution under section 3593(c). The other circuit 2 courts to reach this issue have taken a similar approach, 3 deciding that, absent constitutional or other legal errors, a 4 district court s section 3593(c) rulings are reviewed for abuse 5 of discretion. 6 (5th Cir. 1998) ("[T]he district court has considerable 7 discretion in controlling the presentation of the 'information' 8 to the jury in both content and form." (internal quotations 9 omitted)); United States v. McVeigh, 153 F.3d 1166, 1214 (10th See United States v. Hall, 152 F.3d 381, 397-98 10 Cir. 1998) ("We review a district court's determination that 11 evidence is not relevant to a mitigating factor for abuse of 12 discretion."); United States v. Johnson, 223 F.3d 665, 674 (7th 13 Cir. 2000) ("The [section 3593(c)] balancing is committed to the 14 discretion of the district judge, not here abused." (citing Hall, 15 152 F.3d at 397)). 16 Our review must, however, "be de novo on the question 17 whether, in exercising its discretion to admit evidence, the 18 district court applied the proper legal test." 19 68 F.3d 597, 601 (2d Cir. 1995) (citing A/S Dampskibsselskabet 20 Torm v. Beaumont Oil Ltd., 927 F.2d 713, 716 (2d Cir. 1991)), 21 cert. denied, 517 U.S. 1229 (1996). 22 Borawick v. Shay, The government is understandably wary of our reviewing 23 the district court's rulings under the deferential abuse of 24 discretion standard. 25 arguments as challenges to the legal bases for the district 26 court's rulings, which we would review de novo. -19- It therefore attempts to phrase its The government 1 does not so much as mention the abuse of discretion standard 2 until the second footnote of its reply brief. 3 review the court's orders both for errors of law and abuse of 4 discretion.13 5 6 7 We nonetheless III. A. The Exclusion of Evidence of Child Abuse and the Child Endangerment Conviction Errors of Law 8 18 U.S.C. § 3593(c) provides, in pertinent part: Proof of mitigating and aggravating factors. . . . At the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 3592. Information presented may include the trial transcript and exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial judge's discretion. The defendant may present any information relevant to a mitigating factor. The government may present any information relevant to an aggravating factor for which notice has been provided [by a notice to seek the death penalty]. Information is admissible regardless of its admissibility 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 We ordinarily adhere to the rule that "[i]ssues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal." Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.), cert. denied, 525 U.S. 1001 (1998). And "[w]e generally do not consider issues raised in a reply brief for the first time because if an appellant raises a new argument in a reply brief an appellee may not have an adequate opportunity to respond to it." In re Harris, 464 F.3d 263, 26869 n.3 (2d Cir. 2006) (internal quotation marks and citations omitted). But we think that, in this case, the issues we address were indeed raised by the government, even though it asserted what was, in large measure, the wrong standard of review. There is no doubt, moreover, that the defendant had an opportunity to respond. His first words to us on this subject are: "The standard governing appellate review of the [district] court's evidentiary rulings is 'abuse of discretion.'" Def.-Appellee Br. at 18. -20- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 government and the defendant shall be permitted to rebut any information received at the hearing, and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any aggravating or mitigating factor, and as to the appropriateness in the case of imposing a sentence of death. . . . The burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the information. Section 3593(c) therefore provides the legal standard upon Id. 25 which the district court could exclude what it deemed to be 26 unduly prejudicial evidence at the penalty phase of trial. 27 United States v. Fell, 360 F.3d 135, 140-41 (2d Cir.), cert. 28 denied, 543 U.S. 946 (2004).14 The gravamen of the government's 29 legal argument is that despite the statute's instruction that 30 "information may be excluded if its probative value is outweighed 31 by the danger of creating unfair prejudice, confusing the issues, 14 See In several instances, the district court does not appear to apply § 3593(c) in its analysis, instead discussing evidence in light of 21 U.S.C. § 848(j), now repealed. However, § 848(j)'s language utilized the less stringent "substantially outweighed" wording similar to that in Fed. R. Evid. 403. Because the test in section 3593(c) gives the court greater power to exclude prejudicial evidence than does the test in section 848(j) or Rule 403, the district court's conclusion would not likely have been different had it applied section 3593(c) from the outset, as the court acknowledges. See Taveras III, 436 F. Supp. 2d at 500-01. -21- 1 or misleading the jury," section 3593(c) as a whole mandates the 2 district court's admission, in the penalty phase of this case, of 3 evidence as to child abuse or the child endangerment conviction, 4 or both. 5 We conclude that it does not. It is true, as the government points out, Gov't Br. at 6 31, that in United States v. Fell, we noted, "the Supreme Court 7 has . . . made [it] clear that in order to achieve [the required] 8 'heightened reliability[]' [in the penalty phase of a capital 9 case], more evidence, not less, should be admitted on the 10 presence or absence of aggravating and mitigating factors." 11 Fell, 360 F.3d at 143 (citing Gregg v. Georgia, 428 U.S. 153, 12 203-04 (1976)). 13 observation that relevant evidence is always permitted. 14 Acceptance of that reasoning would eviscerate the trial court's 15 ability to exclude unduly prejudicial material from the penalty 16 hearing inasmuch as any decision to exclude necessarily means 17 less evidence, not more. 18 But it hardly follows from that general In upholding the constitutionality of section 3593(c) 19 in Fell, we noted that the requirement of a fundamentally fair 20 trial 21 22 23 24 25 26 27 28 29 30 31 is certainly met [by section 3593(c)], given that the balancing test set forth in the FDPA is, in fact, more stringent than its counterpart in the [Federal Rules of Evidence], which allows the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403 . . . . Thus, the presumption of admissibility of relevant evidence is -22- 1 2 actually narrower under the FDPA than under the FRE. 3 Fell, 360 F.3d at 145 (first emphasis added). 4 We then pointed out that: 5 6 7 8 9 10 11 12 13 14 15 16 The FDPA does not eliminate [the] function of the judge as gatekeeper of constitutionally permissible evidence; nor does it alter or eliminate the constitutional baseline for the admissibility of evidence in a criminal trial. To the contrary, under the FDPA [s]tandard, judges continue their role as evidentiary gatekeepers and, pursuant to the balancing test set forth in § 3593(c), retain the discretion to exclude any type of unreliable or prejudicial evidence that might render a trial fundamentally unfair. 17 Id. (citations, internal quotation marks, and brackets omitted). 18 Fell does not support the government's contention. 19 Citing Gregg v. Georgia, supra, and Williams v. New 20 York, 337 U.S. 241 (1949), the government also insists that "to 21 be constitutional, a capital sentencing procedure must be 22 individualized and based on the fullest possible information 23 about the defendant." 24 that the government is entitled to present to the jury "the 25 fullest possible information about the defendant" regardless of 26 what that information might be. 27 capital trial scheme much like the FDPA was constitutional, in 28 part because it "provides for a bifurcated proceeding at which 29 the sentencing authority is apprised of the information relevant 30 to the imposition of sentence and provided with standards to 31 guide its use of the information." 32 proceedings before us meet that standard, whatever the district 33 court's ruling was on the admissibility of evidence of child -23- Gov't Br. at 33. But Gregg did not hold It concluded that a Georgia Gregg, 428 U.S. at 195. The 1 abuse. Similarly, the Williams Court approved a sentencing 2 judge's ability, in determining that a death sentence was 3 warranted, to consider evidence of other crimes of which the 4 defendant had not been convicted but in which he had been 5 implicated. 6 court to admit such evidence at the penalty phase is not at issue 7 here. 8 that the district court was permitted to admit evidence related 9 to child abuse and the conviction for child endangerment Williams, 337 U.S. at 244.15 The ability of the While both Gregg and Williams might be read to suggest 10 consistent with the requirements of due process, they plainly do 11 not require the district court to do so as a matter of law. 12 The other arguments the government makes on this score 13 are of a similar stripe. 14 that the Ninth Circuit "upheld a sentencing jury's consideration 15 of the defendant's lewd and lascivious conduct conviction . . . 15 For example, the government tells us The Court stated: A sentencing judge . . . is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant -- if not essential -- to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial. Williams, 337 U.S. at 247. -24- 1 and his unadjudicated rape of an adult." Gov't Br. at 36 (citing 2 McDowell v. Calderon, 107 F.3d 1351, 1366, amended and superseded 3 in part by 116 F.3d 364, vacated in part, 130 F.3d 833 (9th Cir. 4 1997) (en banc), cert. denied, 523 U.S. 1103 (1998)). 5 asserts, "[o]ther courts have admitted information about prior 6 violent acts such as rape, assault and child abuse to inform the 7 jury s decision regarding future dangerousness." 8 (citing McDowell, 107 F.3d at 1366; Hogue v. Scott, 874 F. Supp. 9 1486, 1509-11, 1524 (N.D. Tex. 1994), aff'd, 131 F.3d 466 (5th And, it Gov't Br. at 38 10 Cir. 1997), cert. denied, 523 U.S. 1014 (1998)). 11 But it does not follow that the district court in this case and 12 on this record was required by law to rule that the prejudicial 13 effect of the evidence in question did not outweigh its probative 14 value. 15 16 17 That may be so. There was no error of law. B. Abuse of Discretion When reviewing the exercise of a district court's 18 discretion in the context of admissibility of evidence under 19 Federal Rule of Evidence 403, we will not disturb the court's 20 conclusion "so long as [it] has conscientiously balanced the 21 proffered evidence's probative value with the risk for 22 prejudice," and our intervention is limited only to those cases 23 where the court's decision is "arbitrary or irrational." 24 Awadallah, 436 F.3d at 131 (citing United States v. Han, 230 F.3d 25 560, 564 (2d Cir. 2000)); see also id. (quoting Hester v. BIC 26 Corp., 225 F.3d 178, 181 (2d Cir. 2000) ("A district court's -25- 1 evidentiary rulings will be disturbed only if they are 2 'manifestly erroneous.'" (quoting Luciano v. Olsten Corp., 110 3 F.3d 210, 217 (2d Cir. 1997)))). 4 same degree of deference does not apply when a district court has 5 excluded government-proffered evidence under 18 U.S.C. § 3593(b) 6 in the penalty phase of a capital trial. 7 We perceive no reason why the In the case before us, the district court explained at 8 different times, and in some detail, its decision to exclude 9 evidence as to child abuse and the prior child endangerment 10 conviction. According to the court: 11 relate to the homicidal characteristics which form the basis of 12 the prosecution," Taveras I, 2006 WL 473773, at *6, 2006 U.S. 13 Dist. LEXIS 7408, at *18; it "might well be overvalued in light 14 of recent publicity on sexual assaults on children in this 15 geographic area," id., 2006 U.S. Dist. LEXIS 7408, at *18; there 16 is a "great likelihood that defendant, if convicted and spared 17 death, will spend the rest of his life in prison" and therefore 18 his dangerousness to minor children and women is of little 19 relevance, Taveras II, 424 F. Supp. 2d at 463; it is possible 20 that admission of the evidence would necessitate a "diversionary 21 trial within a trial" as to whether Pepin's sexual relationship 22 with Mendez's daughter was consensual and whether he abused her, 23 id. at 463-64; it is likely that the evidence would "so inflame 24 the passions of the jurors as to inhibit their careful 25 consideration of the future dangerousness factor," id. at 464. 26 When the government amended its Notice of Intent to Seek a -26- "[This evidence does] not 1 Sentence of Death to add the child endangerment conviction as a 2 means of putting much the same evidence before the jury under the 3 rubric of "moral condemnation," the court further observed that 4 it had earlier failed to have admitted as evidence of "future 5 dangerousness," and that "[n]othing in the government's motion 6 justifies departure from the court's previous ruling excluding 7 this same evidence," Taveras III, 436 F. Supp. 2d at 502-03. 8 district court thus made "a 'conscientious assessment' of whether 9 unfair prejudice substantially outweighs probative value." The 10 Salameh, 152 F.3d at 110 (quoting United States v. Birney, 686 11 F.2d 102, 106 (2d Cir. 1982)). 12 analysis bespeaks an "arbitrary or irrational" exercise of 13 discretion, Awadallah, 436 F.3d at 131, or results in an 14 evidentiary ruling that is "manifestly erroneous," Hester, 225 15 F.3d at 181. 16 We cannot conclude that its We therefore affirm as to these orders. We pause to note that this evidentiary challenge is 17 unusual because it is made, properly under 18 U.S.C. § 3731, by 18 way of pre-trial interlocutory appeal rather than being brought 19 post-trial, post-verdict, and post-judgment. 20 fair and proper conduct of a trial must be, and is, primarily in 21 the hands of the trial judge. 22 before trial or after, is, therefore, abuse of discretion. 23 e.g., Awadallah, 436 F.3d at 131 (applying abuse of discretion 24 review in a pre-trial appeal by the government to a district 25 court's evidentiary ruling pursuant to 18 U.S.C. § 3731). 26 were we to disagree with its conclusion as to the admissibility Nonetheless, the The standard of review, whether -27- See, Even 1 of child abuse evidence, then, we would not simply substitute our 2 judgment for that of the district court. 3 4 IV. The Exclusion of Evidence of Post-Mortem Dismemberment 5 The government's challenge to the exclusion from both 6 the guilt and penalty phases of all evidence regarding the 7 victims' post-mortem dismemberment raises somewhat different 8 issues. 9 The parties offer different accounts of the reasoning 10 behind the district court's decision to exclude the dismemberment 11 evidence from the guilt phase of the trial. 12 argues, in essence, that the district court found the evidence 13 admissible under Rule 403, but went on to exclude it nonetheless, 14 because the evidence was not independently admissible during the 15 penalty phase. 16 based its ruling on Rule 403 alone, which permits a judge to 17 consider both the defendant's willingness to stipulate and the 18 potential for prejudice in the penalty phase in conducting the 19 requisite balancing. 20 review the decision de novo as a question of law, while under the 21 defendant's view, we would only ask whether the application of 22 Rule 403 constituted an abuse of discretion. 23 reasonable characterizations of the district court's order in 24 Taveras III, we find it unnecessary to choose between them. 25 Whether the district court applied a novel rule of law or relied 26 on Rule 403, we conclude that its order with respect to the 27 dismemberment evidence at the guilt phase must be vacated. -28- The government The defense contends that the district court Thus, under the government's view, we would While both are 1 A. Errors of Law 2 First, as the district court acknowledged, Federal Rule 3 of Evidence 403, providing that "evidence may be excluded if its 4 probative value is substantially outweighed by the danger of 5 unfair prejudice . . . ." (emphasis added), governs admissibility 6 of evidence at the guilt phase. 7 513. 8 less latitude to exclude probative evidence based on unfair 9 prejudice at the guilt phase, under Rule 403, than it does where 10 the evidence is offered only at the penalty phase and where the 11 court's exercise of discretion is, therefore, governed by the 12 more stringent evidentiary standard of 18 U.S.C. § 3593(c). 13 Inasmuch as the question before us is the admissibility of 14 dismemberment evidence at the guilt phase, it would appear that 15 Rule 403 applies here. 16 such evidence only if the danger of unfair prejudice 17 "substantially outweighs" its probative value under Rule 403, not 18 if the one merely "outweighs" the other as section 3593(c) 19 permits. 20 Taveras III, 436 F. Supp. 2d at As we have noted, a district court ordinarily has somewhat If so, the district court can exclude According to the government, the district court 21 excluded the evidence at the guilt phase, even after finding it 22 admissible under Rule 403, because it was not independently 23 admissible during a potential penalty phase. 24 argues, is both contrary to section 3593(c) and unsupported by 25 any authority. -29- This decision, it 1 As the district court was keenly aware, a court has two 2 separate sets of responsibilities with respect to evidence that a 3 single jury may consider twice, once when deciding between guilt 4 and acquittal, the other when deciding between life and death. 5 Insofar as the district court fashioned a novel rule governing 6 evidence at the guilt phase of a capital trial, it was clearly 7 attempting to meet both responsibilities rather than one at the 8 expense of the other. 9 the district court excluded evidence from the guilt phase solely 10 because it was excluded at the penalty phase, we conclude that it 11 erred as a matter of law. 12 Nevertheless, if and to the extent that We do not think that the district court, in making its 13 Rule 403 determinations, is required to ignore its subsequent 14 obligation to apply the section 3593(c) standard at the penalty 15 phase. 16 the penalty phase is admissible during the guilt phase, however, 17 would impermissibly allow the section 3593(c) admissibility 18 standard to govern evidentiary rulings not only at the penalty 19 phase, but throughout the entire proceeding. 20 B. 21 To rule that only evidence independently admissible at Abuse of Discretion Although acknowledging once again the degree of 22 deference we pay to a district court's ruling on the 23 admissibility of evidence, we also conclude that the order 24 excluding all evidence as to post-mortem dismemberment, to the 25 extent that it relies on Rule 403, was an abuse of discretion. -30- 1 The issue at the guilt phase will be whether the 2 killings of Rosario and Madrid by Pepin were "intentional." See 3 Taveras III, 436 F. Supp. 2d at 514. 4 dismemberment evidence to the prosecution was cogently stated by 5 the district court: The importance of 6 7 8 9 [A]spects of the photographs and testimony -particularly the precise manner in which the bodies were dismembered - are . . . highly probative of [the] mental state [in issue]. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 At the guilt phase, such evidence would be pertinent. To secure a conviction on the capital charges, the prosecution must convince the jury beyond a reasonable doubt that defendant "intentionally kill[ed] or counsel[led], command[ed], induce[d], procure[d], or cause[d] the intentional killing of an individual and such killing result[ed]." 21 U.S.C. § 848(e)(1)(A). Defendant has indicated that he does not intend to contest that he killed Madrid and Rosario, lessening the need for witness testimony on the fact of the killing. A stipulation to the victims' deaths at defendant's hands would thus be an alternative source of proof. See Old Chief v. United States, 519 U.S. [172,] 184 [(1997)] ("[T]he Rule 403 'probative value' of an item of evidence . . . may be calculated by comparing evidentiary alternatives."). Yet the government must prove not merely the fact of the killing, but defendant's intent. 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Evidence that defendant calmly dismembered the victims' bodies shortly after killing them would tend to show that the killings were not accidental - that is, that he was calm, collected, and rational shortly before the killings. The precise manner in which defendant disposed of the bodies -- using a knife and drawing on his skill as a butcher to cut at the joints -- suggests not a panicked reaction to accidental death but a considered effort to hide a criminal act. These details form part of the res gestae, the narrative that the government rightly seeks to tell at the guilt phase of a trial. -31- 1 2 3 4 5 6 7 Old Chief v. United States, 519 U.S. [at] 187 . . . (1997). Their probative value would not be "substantially outweighed by the danger of unfair prejudice . . . ." Fed. R. Evid. 403. Id. (some brackets added). Even after factoring in the potential for unfair 8 prejudice at the penalty phase, we conclude that in light of its 9 importance in the context of the case as a whole -- its "res 10 gestae," as the district court termed it, id. -- the fact that 11 Pepin dismembered the bodies of the deceased is potentially too 12 important a factor in the jury's determination as to Pepin's 13 guilt vel non of the crimes of which he is accused for it to be 14 excluded altogether at the guilt phase. 15 deciding that the evidence may later be excludable and therefore 16 excluded under section 3593(c) during the penalty phase of the 17 trial conducted before the same jury, and that the jury would 18 thus have had access to information that should not be before it 19 for purpose of evaluating the sentence to be imposed. 20 would be odd, indeed, if the very gruesomeness of the killings of 21 which Pepin has been charged were to disjoint and abbreviate the 22 prosecution's presentation of the case against him, thus 23 disadvantaging the government in its ability to establish to the 24 jury beyond a reasonable doubt that Pepin committed an 25 intentional homicide in the first place. 26 dismemberment evidence to the proper prosecution of the case, 27 combined with the possibility of curative instructions at the 28 penalty phase, if necessary, convince us that evidence of the -32- We assume without But it The importance of the 1 dismemberments and their context must be allowed at the guilt 2 phase. 3 We do not mean to suggest that all evidence of 4 dismemberment must be admitted at the guilt phase. 5 blanket ban of dismemberment evidence from the guilt phase was an 6 abuse of discretion, and we therefore vacate the order of the 7 district court effecting such a ban. 8 9 But the The government also asks us to decide that evidence of dismemberment must be permitted at the penalty phase. We decline 10 to do so. Much will have happened between now and then, 11 particularly the likely use of evidence of dismemberment at the 12 guilt phase. 13 what the precise issue before the court will be if and when it 14 actually is framed. 15 barring dismemberment evidence from the penalty phase. 16 these proceedings enter a penalty phase, we leave it to the 17 district court at that time -- in light of the views expressed in 18 this opinion and in the district court's sound discretion -- to 19 enter an order as to the admissibility of such evidence. We cannot know with anything approaching certainty We therefore vacate the order now in force Should CONCLUSION 20 21 For the foregoing reasons, the orders of the district 22 court are affirmed, except its order with respect to evidence of 23 dismemberment at the guilt and penalty phases of trial, which is 24 vacated. 25 effective upon issuance of the mandate. 26 his or its own costs. The order of this Court staying the trial is vacated -33- Each party shall bear
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
